The Office of Court Administration (OCA) has announced new Practice Rules of the Appellate Division, codified at 22 N.Y.C.R.R. Part 1250. The old, separate rules of practice for each department are repealed effective at the close of business Sept. 16, 2018, and the new joint rules go into effect Monday, Sept. 17. The new rules bring greater uniformity to the rules of the four departments in the Appellate Division and significant benefits to the courts and practicing attorneys. Each department has supplemented the joint rules with a few local rules that reflect the variations in practice particular to their respective parts of the state. The local rules are also effective Sept. 17.
Acting Supreme Court Justice Denise Hartman, who was an appellate lawyer in New York's Solicitor General's Office for nearly three decades, welcomed the announcement: "The new rules have merged a lot of different practices, which is good for the courts and especially for appellate attorneys who work among the departments."
James Pelzer, retired Clerk of the Appellate Division, Second Department, added that "adoption of joint rules that apply to all four appellate departments means attorneys will no longer have to learn court practices applicable in different parts of the state."
The sometimes subtle differences among the departments' rules can stymie practitioners who only rarely appear in appellate courts, and even occasionally confound attorneys who practice regularly in the four departments.
The groundwork for the new rules was laid by the New York State Bar Association's Committee on Courts of Appellate Jurisdiction (CCAJ). In 2011, then-committee co-chairs Hartman and Cynthia Feathers determined that one of their priorities would be to study the appellate rules to see which could easily be harmonized, which could be aligned with some effort and which would not easily be reconciled, and to report on their results.
"The goal was to minimize traps for the unwary by eliminating, to the extent possible, the nuanced differences that, for example, can cause an attorney to inadvertently miss a deadline, which means the court would have to address a motion to correct the error," said Judge Hartman.
The key was to work in consultation with each department, whose local rules often reflected deeply embedded procedures, culture and history. Co-Chairs Hartman and Feathers arranged a series of meetings with the presiding justice and the clerk of each department to ask for their input on and cooperation with the project.
The CCAJ then formed a Subcommittee on Appellate Division Rules, chaired by Judge Hartman. Subcommittee members included Mr. Pelzer, appellate practitioners, a sitting appellate judge, and a former appellate judge. Each member had years of experience in appellate practice and deep personal knowledge of how confusion over the rules could cause a case to go awry.
For nearly a year and a half, the subcommittee methodically reviewed the rules, topic by topic, meeting in two-hour monthly conference calls that featured presentations on rule topics, followed by an open discussion. Representatives from each of the four departments - the clerks themselves or a deputy clerk - participated in each call, providing their perspective on the current rules.
The subcommittee's final report included a chart with a side-by-side comparison of the rules along with recommendations for unified practice rules. The Report on Appellate Division Rules was approved by NYSBA's Executive Committee in April 2014. It was then submitted to the chief judge and the presiding justices of the four departments.
"It was fortuitous when Chief Judge Janet DiFiore joined the Court of Appeals in 2016," said Judge Hartman. When the chief judge announced her "Excellence Initiative," a detailed and comprehensive evaluation of current court processes and procedures to determine what is working well and what needs to be improved, she referred to the subcommittee's report and recommendations in a review of the Appellate Division rules. The report was cited in the proposed rules, which OCA posted in May 2017.
During the comment period, the subcommittee thoroughly reviewed the draft rules and submitted a marked-up copy to the OCA, noting that the amount of leeway granted to the departments to establish their own local rules might dilute the utility of the new rules. The OCA considered these comments and reduced the instances in which local rules were authorized. In December 2017, the presiding justices of the four departments issued a joint order adopting the new Practice Rules, which were revised and codified in Part 1250 in June 2018.
Judge Hartman is pleased that the subcommittee's work helped bring about the adoption of a unified set of rules of practice for the Appellate Division. "It gave the courts a good base and solid recommendations, packaged in a format that allowed the rules to easily be compared," she said.
She also marveled at how it all came together: "The subcommittee members and the court personnel had an impressive spirit of cooperation and were willing to invest the time and energy it took to put forth this report. We were very lucky to have this group of people on board at that time and place. The timing also corresponded with the phase-in of appellate electronic filing rules. These circumstances combined with the advent of the Chief Judge's Excellence Initiative - it was serendipity."
The new Practice Rules of the Appellate Division are available at 22 N.Y.C.R.R. Part 1250, and the new Local Rules, which are now keyed into the new Part 1250 rules, are available at 22 N.Y.C.R.R. Part 600 (First Department), Part 670 (Second Department), Part 850 (Third Department), and Part 1000 (Fourth Department).
The new Practice Rules and the new Local Rules are also posted on the NYSBA website at http://archive.nysba.org/WorkArea/DownloadAsset.aspx?id=85241.
The Report on Appellate Division Rules is available at www.nysba.org/appellatedivisionrules.