On October 16, 2008, the Court of Appeals revised 22 NYCRR part 500 (Court of Appeals Rules of Practice) effective November 5, 2008, or as soon thereafter as section 52 of the Judiciary Law is complied with.
This commentary on the revisions to 22 NYCRR part 500 (Court ofAppeals Rules of Practice) discusses the rule changes that affect civil practice before the Court.
500.1 General Requirements
This rule was amended to clarify the definition of "papers filed" (§ 501[b]), andto separately highlight information that shall be provided for all filings (§§501[d]-[h]). The word “record” was added to § 501[b]).
§ 500.1. General Requirements
(a) All papers shall comply with applicable statutes and rules, particularly thesigning requirement of 22 NYCRR 130-1.1-a.
(b) Papers filed. "Papers filed" means briefs, papers submitted pursuant to sections 500.10 and 500.11 of this Part, motion papers, records and appendices (hereinafter "papers filed").
(c) Method of reproduction. All papers filed may be reproduced by any method that produces a permanent, legible, black image on white paper. Reproduction on both sides of the paper is encouraged.
(d) Designation of original. Where this Part requires the filing of multiple copies of papers, the parties shall identify on its cover the original document filed.
(e) Proof of service. The original affidavit of service shall be affixed to theinside of the back cover of the original of each paper filed.
(f) Disclosure statement. All papers filed by or on behalf of a corporation orother business entity shall contain a disclosure statement listing all itsparents, subsidiaries and affiliates, or state that no such parents, subsidiariesand affiliates exist.
(g) Citation form. Where New York authorities are cited in any submissions, New York Official Law Report citations shall be included, if available.
(h) Inclusion of decisions. Copies of decisions that are not officiallypublished, or are not otherwise readily available, shall be included in thesubmission in which such decisions are cited.
(i) Paper quality, size and binding. Paper shall be opaque, unglazed, white and eleven by eight and one-half inches. Briefs, appendices, records and motionpapers shall be bound on the left side in a manner that keeps all pages securelytogether, without plastic covers or any metal fasteners or similar hard materialthat protrudes or presents a bulky surface or sharp edge.
(j) Computer-generated papers filed. Papers filed prepared on a computer shall be printed in either a serifed, proportionally spaced typeface, such as Times Roman, or a serifed monospaced typeface, such as Courier. Narrow or condensed typefaces and condensed font spacing shall not be used. Except in headings, words shall not be in bold type or type consisting of all capital letters.
(1) Papers filed using a proportionally-spaced typeface. The body of any papersfiled using a proportionally-spaced typeface shall be printed in 14- point type.Footnotes shall be printed in type of no less than 12 points.
(2) Papers filed using a monospaced typeface. The body of any papers filed usinga monospaced typeface shall be printed in 12-point type containing no more than 10and one-half characters per inch. Footnotes shall be printed in type of no lessthan 10 points.
(k) Typewritten papers filed. Typewritten papers filed shall be neatly prepared in legible type no smaller than elite and in a pitch of no more than twelve characters per inch. The original, ribbon typescript of any papers filed shall besigned and filed as the original required by this Part. Carbon copies will not beaccepted.
(l) Margins, line spacing and page numbering of computer-generated and typewritten papers filed. Computer-generated and typewritten papers filed shallhave margins of one inch on all sides of the page. Text shall be double-spaced,but quotations more than two lines long may be indented and single-spaced.Headings and footnotes may be single-spaced. Pages shall be consecutivelynumbered in the center of the bottom margin of each page.
(m) Handwritten papers. Self-represented litigants may serve and filehandwritten papers. Such papers shall be neatly prepared in cursive script orhand printing in black ink. Pages shall be consecutively numbered in the centerof the bottom margin of each page. The filing of handwritten papers is notencouraged. The clerk of the Court may reject illegible papers.
(n) Filing of papers. All papers filed shall be addressed to the clerk ofthe Court at 20 Eagle Street, Albany, New York 12207, not to a Judge or Judges of the Court, and shall be served on each other party in accordance with the requirements of this Part. Submissions shall not be filed by facsimile transmission or electronic mail, except when requested by the clerk of the Court.
(o) Acknowledgment of receipt of papers. A request for an acknowledgment of receipt of papers shall be accompanied by the papers filed and a self-addressed, postage pre-paid postcard or envelope. Parties proceeding as poor persons or requesting poor person relief shall comply with this requirement if acknowledgment of receipt of papers is desired.
(p) Nonconforming papers. The clerk of the Court may reject papers thatdo not conform to the requirements of this Part.
500.2. Companion Filings on Compact Disk, Read-Only Memory (CD-ROM)
Only grammatical changes were made to this section.
§ 500.2. Companion Filings on Compact Disk, Read-Only Memory (CD-ROM)
(a) The Court allows the submission of briefs, records or appendices on compactdisk, read-only memory (CD-ROM) as companions to the requisite number ofprinted briefs, records and appendices filed and served in accordance with thisPart if all parties have consented to the filing of the companion CD-ROM brief andrecord or appendix. The Court, by order on motion of any party or on its ownmotion, may require such filing by a party or amicus.
(b) The companion CD-ROM brief, record or appendix shall comply with the currenttechnical specifications available from the clerk's office.
(c) The companion CD-ROM brief, record or appendix shall be identical in contentand format (including page numbering) to the printed version, except that eachalso shall be word-searchable and shall provide electronic links (hyperlinks) tothe complete text of any authorities cited therein, and to all documents or othermaterial constituting the record on appeal. The disk and container shall belabeled to indicate the title of the case and the documents reproduced on thedisk.
(d) Unless the Court requires a greater number, 10 disks or sets of disks shallbe filed, with (1) proof of service of at least one disk or set on each other party; and (2) a copy of the parties' stipulation permitting, or the Court's order directing, such filing.
(e) Unless the Court requires otherwise, appellant's filing and respondent'sfiling, or a joint filing by appellant and respondent, are due 10 days after thefinal due date for filing appellant's reply brief (see section 500.12[d] of thisPart).
500.3. Fees
Only grammatical changes were made to this section.
§ 500.3. Fees
(a) Upon the filing of record material in a civil appeal pursuant to section500.11, 500.12 or 500.26(a) of this Part, appellant shall provide the clerk of theCourt the fee in the amount specified in CPLR 8022 in the form of an attorney'scheck, certified check, cashier's check or money order payable to "State of NewYork, Court of Appeals" unless:
(1) appellant demonstrates exemption from the fee requirements by statute orother authority;
(2) other payment arrangements have been made with the clerk of the Court;
(3) the appeal is accompanied by a motion requesting poor person relief or amotion requesting relief from payment of the filing fee; or
(4) appellant in the Court of Appeals provides a copy of an order issued by anycourt in the action or proceeding to which the appeal relates granting that partypoor person relief, together with a sworn affidavit that the same financialcircumstances exist at the time of filing in the Court of Appeals as when theorder granting poor person relief was issued.
(b) Upon the filing of each motion or cross motion in a civil case pursuant tosections 500.21 through 500.24 or 500.26(b) of this Part, movant shall provide the clerk of the Court with the fee in the amount specified in CPLR 8022in the form of an attorney's check, certified check, cashier's check or moneyorder payable to "State of New York, Court of Appeals"Appeals" unless:
(1) movant demonstrates exemption from the fee requirements by statute or otherauthority;
(2) other payment arrangements have been made with the clerk of the Court;
(3) the motion or cross motion is accompanied by a motion requesting poor personrelief or a motion requesting relief from payment of the filing fee; or
(4) movant in the Court of Appeals provides a copy of an order issued by anycourt in the action or proceeding to which the motion relates granting that partypoor person relief, together with a sworn affidavit that the same financialcircumstances exist at the time of filing in the Court of Appeals as when theorder granting poor person relief was issued.
(c) Except as provided in subsections (a) or (b) above or where otherwisespecifically required by law or by the Court, no fees shall be charged by theclerk of the Court.
500.5 Sealed Documents and Confidential Material
Subsection (e) was added to address the filing of confidential matter subject toa statutory proscription against publication. The title of the Section was changed to add the words “confidential material”.
§ 500.5. Sealed Documents and Confidential Material
(a) Documents under seal are not available for public viewing.
(b) Any papers sealed by a court below or otherwise required by statute to besealed shall be sealed in the Court of Appeals.
(c) Any party to an appeal or motion may request that papers not sealed below besealed in this Court. Such requests shall be by an original and one copy of amotion pursuant to section 500.21 of this Part, with proof of service of one copyon each other party.
(d) Documents and transcripts ordered sealed by the Court of Appeals or a courtbelow shall be reproduced in separate volumes of the record on appeal. Each suchvolume shall be clearly identified on the cover as containing sealed material.
(e) To the extent possible, papers filed shall not contain confidential material subject to a statutory proscription against publication. Where such material must be included, the cover of the paper filed shall clearly indicate that the documentcontains confidential material.
500.6 Developments Affecting Appeals, Certified Questions, Motions and CriminalLeave Applications
This rule was expanded to require counsel on an appeal to timely inform theclerk's office of any changes in the status of related litigation originallyreflected on appellant's preliminary appeal statement, and of related litigationinitiated after that statement was filed in this Court.
§ 500.6. Developments Affecting Appeals, Certified Questions, Motions and CriminalLeave Applications
Counsel shall timely inform the clerk's office and each other party by letter ofall developments affecting appeals, section 500.27 certified questions, motionsand criminal leave applications pending in this Court, including contemplated andactual settlements, circumstances or facts that could render the matter moot andpertinent developments in applicable case law, statutes and regulations. For appeals, counsel shall also timely inform the clerk's office and each other party by letter of any changes in the status of any related litigation reported on the appellant's preliminary appeal statement or of any related litigation commenced after the filing of appellant's preliminary appeal statement. Such letters shall contain proof of service on each other party.
500.7. Post-Briefing, Post-Submission and Post-Argument Communications
Only Grammatical changes were made to this section
§500.7. Post-Briefing, Post-Submission and Post-Argument Communications
Except for communications providing the information required by section 500.6 ofthis Part or those specifically requested by the Court, post-briefing,post-submission and post-argument written communications to the Court are notfavored, and shall be returned to the sender unless accepted by the clerk of theCourt following a written request with a copy of the proposed submission and proofof service of one copy on each other party.
500.8. Withdrawal of Appeal, Motion or Criminal Leave Application
Only grammatical changes were made to this section
§ 500.8. Withdrawal of Appeal, Motion or Criminal Leave Application
(a) Appeals.
(1) Before argument or submission, an appeal shall be marked withdrawn uponreceipt by the clerk of the Court of a stipulation of withdrawal signed by counselfor all parties <<+to the appeal+>> and by all self-represented litigants and, incriminal appeals, additionally by defendant.
(2) After argument or submission, a request to withdraw an appeal shall besupported by a stipulation of withdrawal signed by counsel for all parties to theappeal and by all self-represented litigants and, in criminal appeals, additionally by defendant. The request shall be submitted to the Court for determination.
(b) Motions.
(1) Before its return date, a motion shall be marked withdrawn upon receipt bythe clerk of the Court of a written notice of withdrawal signed by counsel for themoving party, with proof of service of one copy on each other party.
(2) After the return date, a request to withdraw a motion shall be supported by astipulation of withdrawal signed by counsel for all parties to the motion and byall self-represented litigants. The request shall be submitted to the Court for determination.
(c) Criminal Leave Applications. A request to withdraw an application shall bein writing and, if made on behalf of a defendant, shall also be signed bydefendant. The request shall contain an indication of service of one copy uponall parties and, if the request is made by defendant personally, proof of serviceupon defense counsel, if defendant is represented. The request shall be submittedto the assigned Judge for determination.
500.9. Preliminary Appeal Statement
Only grammatical changes were made to this section.
§ 500.9. Preliminary Appeal Statement
(a) Within 10 days after an appeal is taken by (1) filing a notice of appeal inthe place and manner required by CPLR 5515, (2) entry of an order granting amotion for leave to appeal in a civil case, or (3) issuance of a certificategranting leave to appeal in a criminal case, appellant shall file withthe clerk of the Court an original and one copy of a preliminary appeal statementon the form prescribed by the Court, with the required attachments and proof ofservice of one copy on each other party. No fee is required at the time of filingthe preliminary appeal statement.
(b) Where a party asserts that a statute is unconstitutional, appellant shallgive written notice to the Attorney General before filing the preliminary appealstatement, and a copy of the notification shall be attached to the preliminaryappeal statement. The notification and a copy of the preliminary appeal statementshall be sent to the Solicitor General, Department of Law, The Capitol, Albany,New York 12224.
(c) After review of the preliminary appeal statement, the clerk will notify the parties either that review pursuant to section 500.10 or section 500.11 of this Part shall commence or that the appeal shall proceed in the normal course.
§ 500.10. Examination of Subject Matter Jurisdiction (No changes were made to this section)
500.11 Alternative Procedure for Selected Appeals
Subsections (c) (3) and (d) were changed to reflect the addition of §500.1 (f).
Subsection (e) was added to set forth the Court's longstanding practice onalternative review appeals of not permitting appellants to file a reply brief,except where so authorized by the Court or on the Court's own motion.
Former subsection (e) was changed to (f).
Former subsection (h) was added to require counsel to indicate in its 500.11 letter thestatus of any related litigation.
Former subsections (f) was changed to (g) and former subsection (g) was changed to (i).
§ 500.11. Alternative Procedure for Selected Appeals
(a) On its own motion, the Court may review selected appeals by an alternativeprocedure. Such appeals shall be determined on the intermediate appellate courtrecord or appendix and briefs, the writings in the courts below and additionalletter submissions on the merits. The clerk of the Court shall notify all partiesby letter when an appeal has been selected for review pursuant to this section.Appellant may request such review in its preliminary appeal statement. Respondentmay request such review by letter to the clerk of the Court, with proof of serviceof one copy on each other party, within five days after the appeal is taken.
(b) Appeals may be selected for alternative review on the basis of:
(1) questions of discretion, mixed questions of law and fact or affirmed findingsof fact, which are subject to a limited scope of review;
(2) recent, controlling precedent;
(3) narrow issues of law not of statewide importance;
(4) nonpreserved issues of law;
(5) a party's request for such review; or
(6) other appropriate factors.
(c) Appellant's filing. Within 25 days after the date of the clerk of theCourt's letter initiating the alternative review procedure, appellant shall:
(1) file three copies of the intermediate appellate court record or appendix andthree copies of each brief filed by each party in the intermediate appellatecourt. Original exhibits to be relied upon which are not in the record orappendix at the intermediate appellate court shall be filed or, if they are onfile with the clerk of the trial court, subpoenaed to this Court and the Court soadvised by letter. Such exhibits shall be clearly identified and, whereappropriate, their authenticity shall be certified or stipulated to;
(2) file an original and two copies of a letter stating its arguments in supportof appellant's position on the merits. If appellant objects to review pursuant tothis section, the letter shall also explain that position;
(3) include as part of its submission a disclosure statement pursuant to section 500.1(f) of this Part, if necessary;
(4) file proof of service of one copy of its arguments on each other party; and
(5) remit the fee, if any, required by section 500.3(a) of this Part.
(d) Respondent's filing. Within 20 days after service of appellant's submission,respondent shall file an original and two copies of a letter stating its argumentsin support of its position on the merits. If respondent objects to reviewpursuant to this section, the letter shall also explain that position. Respondentshall include in its submission a disclosure statement pursuant to section 500.1(f) of this Part, if necessary, and file proof of service of one copy of its arguments on each other party.
(e) Appellant's reply. A reply is not permitted unless authorized by the Court upon request of the appellant, which shall accompany the proposed filing, or onthe Court's own motion.
(f) Abandonment of arguments. A party shall be deemed to have abandoned any argument made in the intermediate appellate court briefs not addressed or reserved in the written submission to this Court.
(g) Review of subject matter jurisdiction. An appeal selected for reviewpursuant to this section is subject to dismissal on the Court's own motion, shouldit be determined that the Court is without subject matter jurisdiction.
(h) Related litigation. Where necessary, each letter filing shall indicate thestatus of any related litigation as of the date of the letter's filing.
(I ) Termination of alternative procedure. If the Court terminates its review of the appeal pursuant to this section before disposition, the clerk of the Courtwill notify counsel by letter and set a schedule for full briefing of the appeal.
(j) Amicus curiae relief. The Attorney General of the State of New York may file, no later than the filing date set for respondent's submission, an originaland two copies of an amicus curiae submission without leave of the Court, withproof of service of one copy on each party. Any other proposed amicus curiaeshall request amicus curiae relief pursuant to section 500.23(a)(2) of this Part.
500.13 Content and Form of Briefs in Normal Course Appeal
Subsection (a), governing the contents of briefs on normal course appeals, wasexpanded to require that any disclosure statement required by subsection 500.1(f),and an indication of the status of any related litigation, each be included beforethe table of contents in the party's principal brief. The subsection was furtherexpanded to require appellant to include a statement demonstrating the Court'sjurisdiction over the appeal and the reviewability of issues raised on the appeal.
Subsection (b), treating brief covers, was expanded to state that plastic coversshall not be used.
§ 500.13. Content and Form of Briefs in Normal Course Appeals
(a) Content. All briefs shall conform to the requirements of section 500.1 ofthis Part and contain a table of contents, a table of cases and authorities and,if necessary, a disclosure statement pursuant to section 500.1(f) of this Part. Such disclosure statement shall be included before the table of contents in the party's principal brief. Appellant's brief shall include a statement showing that the Court has jurisdiction to entertain the appeal and to review the questions raised, with citations to the pages of the record or appendix where such questions have been preserved for theCourt's review. Respondent's brief may have a supplementary appendix attached to it. The original of each brief shall be signed and dated, shall have theaffidavit of service affixed to the inside of the back cover and shall beidentified on the front cover as the original. Each brief shall indicate thestatus of any related litigation as of the date the brief is completed. Suchstatement shall be included before the table of contents in each party's brief.
(b) Brief covers. Brief covers shall be white and shall contain the caption ofthe case and name, address, telephone number, and facsimile number of counsel orself-represented litigant and the party on whose behalf the brief is submitted,and the date on which the brief was completed. In the upper right corner, thebrief cover shall indicate whether the party proposes to submit the brief withoutoral argument or, if argument time is requested, the amount of time requested andthe name of the person who will present oral argument (see section 500.18 of thisPart). If a time request does not appear on the brief, generally no more than 10minutes will be assigned. The Court will determine the argument time, if any, tobe assigned to each party. Plastic covers shall not be used.
500.14 Records, Appendices and Exhibits in Normal Course Appeals
Subsection (b)(5) was amended to require, as relevant to the appeal, theinclusion of the jury charge. The subsection was further amended to requireinclusion of any testimony, affidavits, jury charge or exhibits cited in the briefof the party filing the appendix.
Subsection (e) was added to require that a reproduced record or appendix containthe statement required by CPLR 5531. Former subsection (e) was relettered subsection (f)
§ 500.14. Records, Appendices and Exhibits in Normal Course Appeals
(a) Record material. Appellant shall supply the Court with record material inone of the following ways:
(1) Appellant may subpoena the original file to this Court from the clerk of thecourt of original instance or other custodian, and submit original exhibits to berelied upon, and supplement these with an original and 24 copies of an appendixconforming to subdivision (b) below, with proof of service of three copies of theappendix on each other party. If appellant is represented by assigned counsel, orhas established indigency, an oral or written request may be made of the clerk ofthis Court to obtain the original file.
(2) Appellant may file with the clerk of the Court one copy of the reproducedrecord used at the court below. This record shall be supplemented by an originaland 24 copies of an appendix conforming to subdivision (b) below, with proof ofservice of three copies of the appendix on each other party.
(3) Appellant may file with the clerk of the Court an original and 24 copies of anew and full record which shall include the record used at the court below, thenotice of appeal or order granting leave to appeal to this Court, the decision andorder appealed from to this Court, and any other decision and order brought up forreview, with proof of service of three copies of the new record on each otherparty.
(b) Appendix. An appendix shall conform to the requirements of CPLR 5528 and5529, and shall be sufficient by itself to permit the Court to review the issuesraised on appeal without resort to the original file (see subsection [a] [1] ofthis section) or reproduced record used at the court below (see subsection [a][2]of this section). The appendix shall include, as relevant to the appeal, thefollowing:
(1) the notice of appeal or order or certificate granting leave to appeal;
(2) the order, judgment or determination appealed from to this Court;
(3) any order, judgment or determination which is the subject of the orderappealed from, or which is otherwise brought up for review;
(4) any decision or opinion relating to the orders set forth in subsections(b)(2) and (3) above; and
(5) the testimony, affidavits, jury charge and written or photographic exhibitsuseful to the determination of the questions raised on appeal or cited in thebrief of the party filing the appendix .
(c) Respondent's appendix. A respondent's brief may include a supplementaryappendix.
(d) Inadequate appendix. When appellant has filed an inadequate appendix,respondent may move to strike the appendix (see section 500.21 of this Part) ormay submit an original and 24 copies of an appendix containing such additionalparts of the record as respondent deems necessary to consider the questionsinvolved, with proof of service of three copies of the appendix on each otherparty. The Court may direct appellant to supplement the appendix with additionalparts of the record it deems necessary to consider the questions involved.
(e) Description of action or proceeding. The reproduced record and additional papers or the appendix shall contain the statement required by CPLR 5531.
(f) Correctness of the record. The correctness of the reproduced record or the appendix and additional papers shall be authenticated pursuant to CPLR 2105 or stipulated to pursuant to CPLR 5532.
500.15 Extensions of Time
This section was amended by deleting the requirement that requests for extensionsof time for filing papers on appeal be made no earlier than 20 days before thefiling due date set by the clerk's office or otherwise prescribed by the Rules.The change was prompted by the currency of the Court's calendar and the Court'sexperience that the requirement no longer served a useful purpose in managingappeals.
§ 500.15. Extensions of Time
The clerk of the Court is authorized to grant, for good cause shown, a reasonableextension of time for filing papers on an appeal. A request for an extension maybe made by telephone call to the clerk's office. The party requesting an extension shall advise the clerk of the Court of the position of each other party with regard to the request. A party granted an extension shall file a confirmation letter, with proof of service of one copy on each other party, unless the clerk's office has notified allparties in writing of the determination of the request.
500.16 Failure to Proceed or File Papers
Subsection (c) was revised to clarify that a party can seek judicial review ofdismissal and preclusion orders by motion on notice.
§ 500.16. Failure to Proceed or File Papers
(a) Dismissal of appeal. If appellant has not filed and served the papersrequired by section 500.11, 500.12 or 500.26(a) of this Part within the time setby the clerk's office or otherwise prescribed by this Part, the clerk of the Courtshall enter an order dismissing the appeal.
(b) Preclusion. If respondent has not filed and served the papers required bysection 500.11, 500.12 or 500.26(a) of this Part within the time set by theclerk's office or otherwise prescribed by this Part, the clerk of the Court shallenter an order precluding respondent's filing.
(c) Judicial review. A party may seek judicial review of dismissal andpreclusion orders entered pursuant to subsections (a) and (b) above by motion onnotice in accordance with section 500.21 of this Part.
500.17 Calendar
Grammatical changes were made to this section and the requirement of a detailed statement of the reasons for the requested adjournment was added to subsection (d).
§ 500.17. Calendar
(a) Notification of argument time and date. When the calendar has been prepared,the clerk of the Court shall advise counsel by letter of the date and timeassigned for oral argument.
(b) Calendar preferences. A party seeking a preference shall address a letter tothe clerk of the Court, with proof of service of one copy on each other party.The letter shall state why a preference is needed, why an alternativeremedy, such as review pursuant to section 500.11 of this Part or submission without argument, is not appropriate, and opposing counsel's position on the request.
(c) Notification of unavailability. Counsel have a continuing obligation tonotify the clerk's office of days of known or possible unavailability for oralargument during the Court's scheduled Albany sessions.
(d) Adjournments. Requests for adjournment of a calendared appeal are notfavored. A party seeking an adjournment shall address a letter to the clerk ofthe Court, with proof of service of one copy on each other party. The lettershall state in detail why the adjournment is necessary, and why submission on the brief filed or having substitute counsel argue are not viable alternatives, and opposing counsel's position on the request.
§ 500.18. Oral Argument (No changes were made to this section.)
§ 500.19. Remittitur (No changes were made to this section.)
§ 500.20 Criminal Leave Applications. ( Changes to this section are not discussed in this commentary.)
500.21 Motions--General Procedures
Section (f) was changed to reflect the change in section 500.11, with regard to the disclosure statement pursuant to section 500.1(f).
Section (h) was added to clarify the Court's practice of automatically filing andentering orders issued on motions. The section further advises that the Court hasno procedure for filing additional papers, such as proof of service of a copy ofthe order with notice of entry.
§ 500.21. Motions--General Procedures
(a) Return date. Regardless whether the Court is in session, motions shall bereturnable on a Monday or, if Monday is a legal holiday, the first business day ofthe week unless otherwise provided by statute, order to show cause or stipulationso ordered by a Judge of the Court. Motions shall be submitted without oralargument, unless the Court directs otherwise. No adjournments shall be permittedother than in those limited instances provided by statute (CPLR 321[c] and 1022).
(b) Notice and service. Movant shall serve a notice of motion and supportingpapers on sufficient notice to each other party, as set forth in the CPLR andbelow. In computing the notice period, the date of service shall not be included.
(1) When movant's papers are personally served, movant shall give at least eightdays' notice (CPLR 2214[b]).
(2) When movant's papers are served by regular mail, movant shall give at least13 days' notice (CPLR 2103[b][2]).
(3) When movant's papers are served by overnight delivery service, movant shallgive at least nine days' notice (CPLR 2103[b][6]).
(4) When movant's papers are served by facsimile transmission, movant shallcomply with CPLR 2103(b)(5), and give at least eight days' notice.
(c) Filing. Unless otherwise permitted by the Court or clerk of the Court,movant shall file its papers, with proof of service on each other party of therequired number of copies, at Court of Appeals Hall no later than noon on theFriday preceding the return date. On or before the return date of the motion,respondent may file papers in opposition to the motion, with proof of service oneach other party of the required number of copies. Submissions shall not be filedby facsimile transmission or electronic mail, except when requested by the clerkof the Court. The Court's motion practice does not permit the filing of replybriefs and memoranda. A request for permission to file papers after the returndate of the motion is governed by section 500.7 of this Part.
(d) Number of required copies. Except in cases of indigency, where subsection(g) below applies, the number of copies required to be filed is as follows:
(1) Motions for permission to appeal in civil cases. Movant shall file anoriginal and six copies of its papers, with proof of service of two copies on eachother party. Respondent may file an original and six copies of papers inopposition to the motion, with proof of service of two copies on each other party.
(2) Motions for reargument of appeals, reargument of motions for permission toappeal and reargument of decisions on certified questions. Movant shall file anoriginal and six copies of its papers, with proof of service of two copies on eachother party. Respondent may file an original and six copies of papers inopposition to the motion, with proof of service of two copies on each other party.
(3) Other motions. For motions other than those addressed in subsections (d)(1)and (2) above, movant shall file an original and one copy of its papers, withproof of service of one copy on each other party. Respondent may file an originaland one copy of papers in opposition to the motion, with proof of service of onecopy on each other party.
(e) Fee required. Movant shall remit the fee, if any, required by section500.3(b) of this Part with each motion and cross motion filed.
(f) Form of papers. Movant's papers and opposing papers shall comply in formwith section 500.1 of this Part. The papers shall include a disclosure statementpursuant to section 500.1(f) of this Part, if required.
(g) Proof of indigency. Any motion may be made on one set of papers, with proofof service of one copy on each other party, where:
(1) the motion requests poor person relief and contains the information requiredby CPLR 1101(a), or
(2) movant provides a copy of an order, issued by any court in the action orproceeding to which the motion relates, granting that party poor person relief,together with a sworn affidavit that the same financial circumstances exist at thetime of filing in the Court of Appeals as when the order granting poor personrelief was issued.
(h) Orders determining motions. The original of an order of the Court of Appealsissued on a motion decision is filed in the clerk's office automatically by theclerk of the Court and is entered on the date of decision. There is no procedurefor filing additional papers, such as proof of service of a copy of the order with notice of entry upon adverse parties. If necessary, such papers may be filed inthe office where papers submitted to the court of original instance are filed.
500.22
Subdivision (a) was clarified to make it clear that the movant need not file an original and six copies of its papers if permitted to proceed pursuant to section 500.21(g)Subdivision (b) (5) was changed to refer to 500.11 (f) with regard to the disclosure statement.
§ 500.22. Motions for Permission to Appeal in Civil Cases
(a) Filing and notice. Movant shall file an original and six copies of itspapers, unless permitted to proceed pursuant to section 500.21(g), with proof of service of two copies on each other party. The motion shall be noticed for areturn date in compliance with CPLR 5516 and section 500.21(b) of this Part.
(b) Content. Movant's papers shall be a single document, bound on the left, andshall contain in the order here indicated:
(1) A notice of motion (see CPLR 2214).
(2) A statement of the procedural history of the case, including a showing of thetimeliness of the motion.
(i) If no prior motion for leave to appeal to the Court of Appeals was filed atthe Appellate Division, movant's papers to this Court shall demonstrate timelinessby stating the date movant was served (see CPLR 2103[b]) with the order orjudgment sought to be appealed from, with notice of entry.
(ii) If a prior motion for leave to appeal to the Court of Appeals was filed atthe Appellate Division, movant's papers filed in this Court shall demonstrate thatthe timeliness chain is intact by stating:
(a) the date movant was served with the order or judgment sought to be appealedfrom, with notice of entry,
(b) the date movant served the notice of motion addressed to the AppellateDivision upon each other party, and
(c) the date movant was served with the Appellate Division order denying leaveto appeal with notice of entry.
(3) A showing that this Court has jurisdiction of the motion and of the proposedappeal, including that the order or judgment sought to be appealed from is a finaldetermination or comes within the special class of nonfinal orders appealable bypermission of the Court of Appeals (see CPLR 5602[a][2]).
(4) A concise statement of the questions presented for review and why thequestions presented merit review by this Court, such as that the issues are novelor of public importance, present a conflict with prior decisions of this Court, orinvolve a conflict among the departments of the Appellate Division. Movant shallidentify the particular portions of the record where the questions sought to bereviewed are raised and preserved.
(5) A disclosure statement pursuant to section 500.1(f) of this Part, ifrequired.
(6) Copies of the order or judgment sought to be appealed from with notice ofentry, as well as copies of all relevant orders, opinions or memoranda rendered inthe courts below. The papers shall state if no opinion was rendered.
(c) Additional documents. Movant shall file with its papers one copy of therecord below, or appendix if the appendix method was used in the court below, andone copy of the briefs filed below by each of the parties.
(d) Opposing papers. Respondent may file an original and six copies of papers inopposition to the motion, with proof of service of two copies on each other party.The opposing papers shall state concisely respondent's argument for dismissal ordenial of the motion.
500.23 Amicus Curiae Relief (Changes to this section are not discussed in this commentary.)
500.24. Motions for Reargument of Appeals, Motions and Decisions on CertifiedQuestions
Subsection (a) was changed to add 500.21(g). Only grammatical changes were made to the rest of the section.
§500.24. Motions for Reargument of Appeals, Motions and Decisions on CertifiedQuestions
(a) Filing and notice. Movant shall file an original and six copies of itspapers, with proof of service of two copies on each other party. An original andone copy of a motion for reargument of a motion may be served and filed if filingof an original and one copy of papers was allowed on the underlying motionpursuant to section 500.21(d)(3) or (g).
(b) Timeliness. Movant shall serve the notice of motion not later than 30 daysafter the appeal, certified question or motion sought to be reargued has beendecided, unless otherwise permitted by the Court.
(c) Content. The motion shall state briefly the ground upon which reargument issought and the points claimed to have been overlooked or misapprehended by theCourt, with proper reference to the particular portions of the record and to theauthorities relied upon.
(d) New matters. The motion shall not be based on the assertion for the firsttime of new arguments or points of law, except for extraordinary and compellingreasons.
(e) Limitation on motions. The Court shall entertain only one motion per partyfor reargument of a specific appeal, motion or certified question decision.
(f) Opposing papers. Except on those motions described in section 500.21(d)(3),respondent may file an original and six copies of papers in opposition to themotion, with proof of service of two copies on each other party. The opposingpapers shall briefly state respondent's argument for dismissal or denial of themotion.
§ 500.25. Emergency Matters; Orders to Show Cause ( There were no changes to this section.)
§ 500.26. Primary Election Session Procedures (Changes not discussed in this commentary)
§ 500.27. Discretionary Proceedings to Review Certified Questions from FederalCourts and Other Courts of Last Resort (Changes not discussed in this commentary)
