In the post 2020 environment where an expensive record on appeal is necessary to obtain review in the Appellate Term Second Department, the volume of appeals has significantly decreased. While I favor less dumb interlocutory appeals that diminish the Appellate Term, Second Department’s previous atrocious backlog, it is unfair to force litigants to pay $5,000 in record and brief costs on these appeals. While I know the record rules are implicitly geared towards 325(d) matters, no-fault and consumer debt appeals (by the plaintiff), I think the rule has gone overboard.
I believe as we become an electronic filing state in all courts, we should seriously consider a way to compel the clerk to file an electronic record on appeal with the appropriate appellate court and to have the parties pay for the clerk’s time and effort. A modest fee to produce a record on appeal is fair. This is what they do in Florida on final appeals and it works very well. When I seek discretionary relief, I have to assemble an appendix; again, not a terrible adventure because the CPLR and NYCRR rules regarding headings, pagination and bookmarking does not exist. We also do not have Mrs. Garrone who is the most meticulous clerk I have ever met. Parenthetically, I wish I had her attention to detail – it is one of a kind. She is also never wrong. Back to my post, a modest increase in the Notice of Appeal fee should also be considered to balance the equities and to force the appellant to really consider whether the appeal is bona fide or just a delay/harassment tactic. As a litigant, I feel like I am being held hostage to appellate printing companies. This is not right.
Yes, I can generate my own appendix and record on appeal. I have done that many times. Actually, we cannot use an appendix at the Appellate Term (read the rules) and the NYCCCA/UDCA/UCCA/UJCA prevents us from settling our own transcripts (more nonsense). These are two terrible provisions that lower court appellants must endure that Appellate Division practitioners get to avoid.
Additionally, the technical specifications that the rules of Court and the CPLR place on the record producing and appellate brief creating makes it daunting and otherwise problematic to do it yourself. With the new bookmarking, hyperlinking and providing all cases cited in the brief provision of the Rules, the Courts are making it more prohibitive to be a self-serve appellate lawyer on a modest budget. This in turn, I think, raises due process issues and other problems. A CPLR and rule revision committee should be established at this juncture. To me, the Rules and the CPLR are out of touch with 21st century practice. While I understand that vehicles are more difficult to maintain oneself, the opposite should hold true for appellate preparation.
Should we have a new Appellate Department to deal with the Second Department backlogs? It is unfair to wait 2-3 years for matters to be decided. It almost forces litigants who know appellate intervention is necessary to resolve a matter only involving legal issues that will be resoled on de-novo standard to bring the matter in Courts sitting in the First Department because the end of the litigation is always in sight, I can actually forget about cases I have pending in the Second Department because the backlog is tremendous. Now, I do not want anyone at the Second Department to takes this as a slight. With the volume of causes that Court handles, it is impossible for them to do more.
I can also tell you as a practitioner that the backlog makes it highly unlikely that leave applications from the Appellate Term, Second Department will be granted unless the issue involves a very important matter. Think Carothers. Issues that are incorrectly decided by the Appellate Term but not significant to invoke the Appellate Division’s time will often be declined second level appeal. Consider how many times 4518 and the prima facie case requirement escaped Second Department review until Etienne? This should not be the case.
Can we dispense with paper records and paper briefs permanently? Can we compel the Clerk to produce a record on appeal or Appendix (again only when the system becomes an EFC system)? Should we consider transferring certain “technical” portions of the CPLR to the Chief Administrative Judge to allow the fluidity that is necessary to deal with changes that life and practice bring? For instance, why does CPLR 2106 still prevent the use of “declarations” or “affirmations” by all persons? Does a Note of Issue/ Notice of Trial requirement make sense when conditions always change in what is 3-10 year of litigation? The legislature really should not be deciding the hyper-technical procedural rules that are necessary; it is a task best handled by the Judiciary.
My other question is should the types of interlocutory appeals as of right be limited to summary judgment appeals, motions that affect final judgments, certain 3211 issues, class action issues and other issues of great importance that need to be decided on an expedited basis? Perhaps discovery appeals and other procedural applications (denied defaults) should be appealable by permission only? In so doing, a showing of success on the merits and prejudice if one has to wait until the end of litigation would be the standard. This would mean a showing that will not succeed at first blush will have to wait. It would be nice if the stakeholders looked at ways of making practicing in New York less cumbersome and more fluid.
Being a multistate practitioner at this point in my life, I can acutely express where we excel and where we fail. The one feature I do like about our system, and this will sound odd, is that we have an an Appellate Term system. There is something to be said for having trial level judges decide lower court appeals. It adds a level of expertise on nuts and bolts, lower value or specifically delineated matters that we would not see if the cases were routinely handled by the Appellate Divisions. A great example (and I am not going to go into the weeds here) is the First Department’s trying to figure out where to draw the line on “Unitrin’s” no coverage versus adherence to 65-3.5. Every case says something else. The Appellate Terms, whether you like them or not, have given us certain rules in which they usually do not vacillate. Assuming they vacillate (the new severance rule that I fell victim to), they remain consistent with their new rule.
Candidly, I do not think the system is working. Prove me wrong. Or just read this and think to yourself what we should do differently. Finally, the advantage of making this a blog entry and not a submission to the law journal is that I do not have to provide footnotes with authority to support my factual assertions. But, if you think I am factually wrong, let me know: I can support everything I am saying here.
