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New York Appellate Practice

Expert analysis of the law, with invaluable strategic advicefor effectively handling any case before New York State appellate courts.
Publisher: Matthew Bender
Frequency: (1 issues)
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ISBN: 9781579112783
Publisher: Matthew Bender
Frequency: (1 issues)
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Book Edition: 33

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Selected by the American Academy of Appellate Lawyers as recommended reading for appellate specialists, New York Appellate Practice is a complete, one-stop guide to handling any appeal before a New York Court. It provides detailed coverage of each step in the appellate process, including:

•   Preserving errors for appeal
•   Taking and perfecting the appeal
•   Preparing an appellate brief
•   Arguing the appeal

You'll get detailed information about appellate practice in the Appellate Division departments and the New York Court of Appeals. New York Appellate Practice gives you critical information about appeals in specific types of cases, including criminal appeals, appeals from administrative proceedings, and matrimonial appeals. In addition to legal analysis and practical guidance, New York Appellate Practice includes appellate practice forms and court rules for the Appellate Divisions and Appellate Terms.

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Table of Contents

CHAPTER 1. Organization of the New York Appellate Courts

§ 1.01 Right of Appeal Generally

§ 1.02 Overview of New York Appellate Courts

§ 1.03 Appeals to the Appellate Terms and County Court

§ 1.04 Appeals to the Appellate Division

§ 1.05 Appeals to the Court of Appeals

Appendix 1A Internal Operating Procedures of the Appellate Division, First Department

Appendix 1B Practice in the Appellate Division, Second Department

Appendix 1C The Decision-Making Process in the Appellate Division, Third Department

Appendix 1D The Decision-Making Process in the Appellate Division, Fourth Department

CHAPTER 2. Preservation of Error for Review

§ 2.01 Introduction

§ 2.02 Preserving Issues for Appellate Review--Generally

§ 2.03 Pretrial Steps for Preserving Issues for Appeal

§ 2.04 Preserving Error on Requests for Court Action and Objections to Court Rulings

§ 2.05 Protecting Record During and Immediately After Trial

§ 2.06 Preserving Error When Taking and Perfecting Appeal

§ 2.07 Appellate Division's "Interest of Justice" Jurisdiction

§ 2.08 Appellate Division's Limited Power to Grant Relief to Nonappealing Party

§ 2.09 Exception to Preservation Requirement in Criminal Cases

CHAPTER 3. Threshold Jurisdictional Considerations

§ 3.01 Permissible Appellants--Parties Aggrieved

§ 3.02 Nonparties' Right to Appeal

§ 3.03 Prevailing Parties' Right to Appeal

§ 3.04 Appealable Paper

§ 3.05 Default Judgments and Orders

§ 3.06 Orders Involving Co-Defendants

§ 3.07 Orders Granting Partial Relief

§ 3.08 Orders Entered on Consent

§ 3.09 Review of Determinations by the Commission on Judicial Conduct

§ 3.10 Jurisdiction in Cases Involving Sexual Misconduct

§ 3.11 Miscellaneous Nonappealable Orders

§ 3.12 Finality and Appeals

§ 3.13 Sanctions--Appeal as of Right

§ 3.14 Orders Followed by a Judgment

§ 3.15 The Right to an Appealable Order From an Individual Assignment System (IAS)

§ 3.16 Appellate Treatment of Academic and Moot Questions

§ 3.17 Certified Questions to the Court of Appeals

§ 3.18 Interest of Justice Jurisdiction and Administrative Penalty

CHAPTER 4. Scope of Review

§ 4.01 Statutory Basis for the Scope of Review

§ 4.02 Orders Brought Up for Review

§ 4.03 Appeals Concerning Weight and Sufficiency of Evidence

§ 4.04 Review of Orders Setting Aside Jury Verdicts

§ 4.05 Review of Discretionary Determinations

§ 4.06 Review of Inconsistent Verdicts

§ 4.07 Review of General Verdicts Based on Multiple Theories of Liability

§ 4.08 Credibility and Conflicting Proof

§ 4.09 Review of Dismissal; for Failure to State a Cause of Action; on Opening; at Trial

§ 4.10 Review of Damage Awards in Personal Injury Actions

§ 4.11 Court of Appeals Will Not Review Class Action Orders Until After the Case is Final or Unless Permission to Appeal is Granted

§ 4.12 Judicial Review of Arbitration Awards

§ 4.13 Court of Appeals' Review of Questions of Fact

§ 4.13a Court of Appeals' Review of the Determinations of the Commission on Judicial Conduct

§ 4.14 Review of Administrative Agency Determinations

§ 4.14a Judicial Review of Determinations of Residential Cooperatives

§ 4.15 Harmless Error

§ 4.16 Appellate Review of Ex Parte Orders

§ 4.16a Review of Sua Sponte Orders

§ 4.17 Miscellaneous Limitations on the Courts' Power of Review

§ 4.18 Review of Small Claim and Commercial Claim Judgments

CHAPTER 5. Taking and Perfecting the Appeal

§ 5.01 In General

§ 5.02 Notice of Appeal

§ 5.03 Preparation of Record on Appeal

§ 5.04 Contents of Record on Appeal

§ 5.05
Appendix Method

§ 5.06 Agreed Statement of Facts

§ 5.07 Exhibits

§ 5.08 Cross-Appeals

§ 5.09 Reducing Appellate Costs; Poor Person Relief

§ 5.10 Costs on Appeal

§ 5.11 Imposition of Monetary Sanctions for Vexatious and Frivolous Appeals

§ 5.12 Fee for Filing Record on Appeal

§ 5.13 Time Limitations; Dismissals for Failure to Prosecute

§ 5.14 Length of Briefs

§ 5.15 Calendar Practice

§ 5.16 Preferences

§ 5.17 Preargument Conferences

CHAPTER 6. Stays Pending Appeal

§ 6.01 Stays Pending Appeal, Generally

§ 6.02 Stays Without Court Order (Automatic Stays)

§ 6.03 Actions Defended by Insurance Carriers

§ 6.04 Stays by Court Order

§ 6.05 Continuation of Stays Through Subsequent Appeals

§ 6.06 Proceedings Below During Stay

CHAPTER 7. Preparation of the Appellate Brief

§ 7.01 Technical Requirements of the Brief

§ 7.02 Preliminary Considerations in Preparing the Brief

§ 7.03 Suggestions for Writing the Brief

§ 7.04 Content of the Brief

§ 7.05 The Legal Argument

§ 7.06 The Respondent's Brief

§ 7.07 Reply Briefs

§ 7.08 Sur-Reply and Postargument Communications

§ 7.09 Amicus Curiae Briefs

Appendix 7A Language and Legal Drafting Bibliography

CHAPTER 8. Argument of the Appeal

§ 8.01 The Importance of Oral Argument

§ 8.02 Preserving the Right to Argue

§ 8.03 Time Allowed for Argument

§ 8.04 Who Should Argue?

§ 8.05 Preparation for the Argument

§ 8.06 Presentation and Substance of the Argument

§ 8.07 Respondent's Argument

§ 8.08 Rebuttal Argument

§ 8.09 Post-Argument Submissions

CHAPTER 9. Disposition of the Appeal

§ 9.01 In General

§ 9.02 Appellate Division

§ 9.03 Grant of Relief to Nonappealing Party

§ 9.04 Obtaining Relief as Respondent Without Cross Appealing

§ 9.04a Review of Authority of Referees

§ 9.05 Court of Appeals

§ 9.06 Death of Party Before and During Pendency of Appeal

§ 9.07 Awarding Costs

§ 9.08 Restitution

§ 9.09 Compliance With Appellate Court Orders

§ 9.10 Opinions and Other Writings

§ 9.11 Postargument Games Counsel Play

§ 9.12 Review of Administrative Determinations

§ 9.13 Determinations Without Formal Briefing and Argument

§ 9.14 Preservation

CHAPTER 10. Motions for Reargument

§ 10.01 In General

§ 10.02 The Movant's Burden

§ 10.03 What May Be Considered

§ 10.04 Procedural Requirements

§ 10.05 Opposing the Motion

§ 10.06 Disposition

CHAPTER 11. Court of Appeals Practice

§ 11.01 Introduction

§ 11.02 The Finality Requirement for Review by the Court of Appeals

§ 11.03 Appeals as of Right: CPLR 5601

§ 11.04 Motions for Leave to Appeal (Civil Cases)

§ 11.05 Appeals on Certified Questions

§ 11.06 Review of Determinations of State Commission on Judicial Conduct

§ 11.07 Expedited Consideration of Appeal

§ 11.08 Assigning and Deciding Cases

§ 11.09 Motions to Amend Remittitur

§ 11.10 Discretionary Proceedings to Review Certified Questions from Federal Courts and Other Courts of Last Resort

CHAPTER 11A. Court of Appeals Rules of Practice

§ 11A.01 Introduction

§ 11A.02 "Requirements Applicable to All Filings"

§ 11A.03 "Appeals"

§ 11A.04 Rule 500.20--"Criminal Leave Applications"

§ 11A.05 Motions

§ 11A.06 Rule 500.26--"Primary Election Session Procedures"

§ 11A.07 Rule 500.27--"Certified Questions"

CHAPTER 12. Appellate Term Practice

§ 12.01 Introduction

§ 12.02 Civil Appeals

§ 12.03 Automatic Dismissal of Appeals

§ 12.04 Motion Practice

§ 12.05 Criminal Appeals

§ 12.06 Bringing the Appeal on for Argument and Automatic Dismissal of Appeals in Criminal Cases

§ 12.07 Stays of Judgment Pending Appeal in Criminal Cases

§ 12.08 Leave to Appeal to the Court of Appeals in Criminal Cases

Appendix A Appendix of Forms

Appendix B NYS Constitution, Article VI

Appendix C CPLR Articles--Appeals

Appendix D COURT RULES

Appendix E Criminal Procedure Law

CHAPTER 13. Criminal Appeals

§ 13.01 Appealability

§ 13.02 Obligations of Counsel

§ 13.03 A Defendant's Risks in Appealing

§ 13.04 Taking the Appeal

§ 13.05 Stays and Bail Pending Appeal

§ 13.06 Perfecting the Appeal

§ 13.07 Motion Practice

§ 13.08 Scope and Standards of Review

§ 13.09 Disposition on Appeal

§ 13.10 Post-Conviction Relief

§ 13.11 Brief Writing

§ 13.12 Appeals in Capital Cases

CHAPTER 14. [Reserved]

CHAPTER 15. Appeals from Administrative Proceedings Under Article 78 of the CPLR

§ 15.01 Introduction

§ 15.02 When to Bring Proceeding Under Article

§ 15.03 Bringing Appeal of Administrative Decision Under Article

§ 15.04 Pleadings

§ 15.05 Undertakings

§ 15.06 Stays

§ 15.07 Trials of Issues of Fact

§ 15.08 Transfer to Appellate Division

§ 15.09 Perfecting the Proceeding

§ 15.10 Briefs

§ 15.11 Perfection

§ 15.12 Standards of Review

§ 15.13 Judgment

§ 15.14 Additional Considerations

Appendix 15A Forms

CHAPTER 16. [Reserved]

CHAPTER 17. Special Considerations in Matrimonial Appeals

§ 17.01 Introduction

§ 17.02 Appeal From Decisions on Pretrial Motions

§ 17.03 Stay Relief

§ 17.04 Other Motions to Be Made in Connection With Appeals

§ 17.05 Perfecting the Appeal

§ 17.06 Motions Addressed to Appellant's Record or Appendix and Brief

§ 17.07 Submission or Argument

§ 17.08 Oral Argument

§ 17.09 Motions and Applications Relating to Calendaring

§ 17.10 Questions Relating to Disposition

§ 17.11 Appeals to the Court of Appeals--In General

§ 17.12 Perfecting Appeals in the Court of Appeals

§ 17.13 Remands

§ 17.14 Appeals Involving Child Support

§ 17.15 Full Faith and Credit