Ministerial errors in the notice of appeal may also be cured under CPLR 5520. The failure to file the notice of appeal is curable if it is served, and the failure to serve a notice of appeal is curable if it is filed. An appeal from a decision may be treated as a premature appeal from the judgment under CPLR 5520. Motion to Cure a Premature Appeal or Other Non Jurisdictional ErrorsĬPLR 5520 allows the Appellate Division to cure numerous defects provided they are not jurisdictional. The Aggrieved Party Under CPLR 5511 - Permissible Appellant.For more information on jurisdictional issues, Read the following two articles:.An interlocutory order will be dismissed upon issuance of the final judgment.However, when a default order which is only partially on default may be appealed for those issues which were litigated. The appeal is taken from a default order.If the appealing party is not aggrieved under CPLR 5511, the appeal may be dismissed due to a lack of standing.An order which disposed of only a portion of the relief requested in a motion is not appealable as of right.Note that a motion granting reargument adhering to the original determination is appealable. The appeal is taken from a denial to reargue.The appeal is taken from a bench ruling and was not "so ordered".The appeal is taken from a decision and not a judgment.Some of the more common reasons why a motion to dismiss may be entertained include the following. Many times the appellate division will defer these motions to the decision, but such motions are permitted.
Motion to Dismiss AppealĪ motion to dismissal an appeal may be made to dispose of an appeal prior to the decision on the appeal. Any substantial changes will likely lead the motion to being denied. If a wrong draft of the brief is submitted, a corrected final version may be submitted in its place. These motions are rarely made and even rarer to be granted. The primary function of this type of motion is when the Appellate Division does not address all relief requested or if a critical fact is misunderstood by the Court. Motion to ReconsiderĪ motion to reconsider a decision is authorized. Motion for a Supplemental RecordĪ supplemental record may be filed if a portion of the record was inadvertently omitted. If a brief references facts which are outside the record, a motion to strike that portion of the brief may be made and if granted, the Appellate Division will not consider those portions struck. All three must be met by the moving party to be granted a stay of enforcement. (a) the likelihood of success on the merits, (b) irreparable harm, and (c) balancing of the equities. Motion for a Discretionary Stay of EnforcementĪ motion for a discretionary stay of enforcement must include three elements. It must include an intent to perfect the appeal, that it is a meritorious appeal, and the reason why it was not perfected. Motion to Vacate DismissalĪ motion to vacate a dismissed appeal due to lack of perfecting it in time may be made up to one year after the dismissal. Under the new rules effective September 2018, a motion to enlarge must be made prior to the date the appeal is due, as the appeal is now dismissed on that date if not perfected. Motion to Enlarge the Time to Perfect an AppealĪ motion to enlarge is a request for an extension of time to perfect a brief. The following is a list of common motions. One adjournment is allowed of either 7 or 14 days upon consent.
Cross motions must be made returnable the same day as the original motion and are to be served at least three days in advance either by personal or overnight service. Since motions are mandated to be returnable on Mondays, that means responding papers are due on Friday. of the business day preceding the return date of the motion. Answering papers must be served in accordance with the times set in CPLR 2214(b) and the originals filed by 4:00 p.m. Notice is governed by CPLR 2214(b) and CPLR 2103. Every motion must include a copy of the order or judgment under appeal, the decision giving rise to the judgment, and the notice of appeal with proof of filing. on any Monday, and shall be filed with the clerk at least one week before the return date. Motions in all four Appellate Divisions are governed by 22 NYCRR 1250.4. Motion Practice in the Appellate Division