What We Do
We represent clients on appeal in civil, commercial, employment, and securities matters, including, for example, breach of contract actions, business torts cases, labor, employment, and employee benefits matters, bankruptcy and adversary proceedings, special proceedings challenging government agencies’ actions, and divorce actions and post-divorce judgment proceedings.
Our services encompass all stages of appellate practice, such as:
- Counseling clients on the appellate process and whether an order or judgment should be appealed
- Analyzing trial transcripts and judicial decisions to frame issues for appeal
- Prosecuting, or defending against, substantive motions for appellate relief, including motions for stays or injunctions pending appeal, petitions for writs of mandamus, applications for permission to appeal interlocutory orders, requests for certification of questions of state law, and motions for reargument
- Researching and drafting persuasive appellate briefs
- Planning and delivering oral argument which convincingly addresses the strengths and drawbacks of the case
In appeals in federal courts situated in New York, some of the substantive motions which the “appellant” — the company or individual appealing — frequently brings are as follows. At the Law Offices of David S. Rich, LLC, we have substantial experience litigating, on behalf of entities and individuals, these appellate motions and others.
Motions For Stays Or Injunctions Pending Appeal: A stay pending appeal stays the order that is subject to appeal. In other words, a stay or injunction pending appeal maintains the status quo pending appeal.
Under Fed. R. Civ. P. 62 and Fed. R. App. P. 8, the test for whether to grant a stay pending appeal in either the federal district court or the federal court of appeals is the same. The litigant seeking a stay pending appeal must show that: (1) it likely will prevail on the merits of the appeal; (2) it may suffer irreparable injury if the stay is denied; (3) other interested parties will not suffer substantial harm; and (4) no harm will be done to the public interest.
Petitions For Writs Of Mandamus: Federal court of appeals jurisdiction to issue extraordinary writs, also known as writs of mandamus, arises from the All Writs Act, 28 U.S.C. § 1651(a).
The circumstances warranting issuance of a writ to review federal district court action or inaction are frequently described in terms comparable to an injunction, that is: (1) petitioner has no other adequate means, such as direct appeal, to obtain relief; (2) the district court’s actions are clearly erroneous as a matter of law; (3) the district court’s actions reflect an oft-repeated error, or manifest a persistent disregard of federal rules; and (4) the district court’s action raises new and important problems or issues of law of first impression.
Applications For Permission To Appeal Interlocutory Orders: The federal district court may certify a non-final order for interlocutory appeal based on the standards set forth in 28 U.S.C. § 1292(b). If the federal court of appeals then grants permission to appeal, the moving party may proceed with an interlocutory appeal. In other words, under 28 U.S.C. § 1292(b), both the district court and the court of appeals must decide that an interlocutory appeal is warranted.
The federal district court must certify that: (1) its order involves a controlling question of law; (2) substantial ground exists for difference of opinion on that question; and (3) an immediate appeal from that order may materially advance the ultimate termination of the case.
If the federal district court so certifies, then the moving party may petition the federal court of Appeals for permission to appeal. The federal court of appeals will decide, in its discretion, whether to allow the interlocutory appeal.
Requests For Certification Of Questions Of State Law: Certification of a question of state law to a state’s court of last resort is a two-step process. First, the U.S. Court of Appeals for the Second Circuit (the “Second Circuit”) – the federal court of appeals that hears appeals from judgments and orders of the federal district courts sitting in the states of New York, Connecticut, and Vermont – must certify the question. Second, the state court of last resort must decide whether to accept the certification.
Under Second Circuit Rule 27.2, the Second Circuit, in deciding whether to certify a question of state law to a state’s court of last resort, is guided by three factors: (1) whether the state’s court of last resort has addressed the issue and, if not, whether the decisions of other courts of that state permit the Second Circuit to predict how the state’s court of last resort would resolve it; and (3) whether the certified question is determinative of the claim before the Second Circuit.
Under 22 N.Y.C.R.R. § 500.27, the New York Court of Appeals – the State of New York’s highest court – is authorized, but not required, to accept, from the Second Circuit, certification of a question of New York law.
Among the reasons that the New York Court of Appeals may decline to answer the question certified are that: (1) the New York Court of Appeals prefers to wait until the Appellate Division – the State of New York’s intermediate court of appeals – has had an opportunity to consider the issue and to give the Court of Appeals the benefit of the Appellate Division’s reasoned decision; or (2) the Court of Appeals finds that it is unclear whether the certified question will be determinative of the underlying matter or that the tendered issue is better left for definitive resolution by the federal courts themselves.
New York Appeals
In appeals in New York’s Appellate Division or in the New York Court of Appeals, as the case may be, some of the substantive motions which the appellant frequently brings are as follows. At the Law Offices of David S. Rich, LLC, we have substantial experience litigating, on behalf of entities and individuals, these appellate motions and others.
Motions For Stays Pending Appeal: When the judgment or order appealed from does not meet the prerequisites for an “automatic” stay under N.Y. C.P.L.R. 5519(a) or (b), and upon application by the appellant, New York’s Appellate Division, pursuant to N.Y. C.P.L.R. 5519(c), has discretion to stay enforcement of the judgment or order pending the appeal from the judgment or order.
Among the factors that the Appellate Division considers in deciding whether to grant an application for a stay pending appeal are: (1) whether the litigant seeking a discretionary stay has demonstrated that the underlying appeal itself may have merit; (2) the possible impacts on the progress of important public work involved if a stay is granted or denied in the case; (3) whether the stay will prejudice other parties; and (4) whether the appeal may become moot and academic.
Motions For Reargument: In the Appellate Division of the Supreme Court of the State of New York, First Judicial Department (the “Appellate Division, First Department” or the “First Department”) – that branch of New York’s Appellate Division which hears appeals from judgments and orders of the state trial courts located in New York County (Manhattan) and Bronx County – the litigant who lost the appeal may move, under 22 N.Y.C.R.R. § 600.14, to reargue the appeal.
The litigant seeking reargument must demonstrate that the First Department overlooked or misapprehended points of fact or misapplied controlling principles of law.
Motions For Permission To Appeal: Pursuant to N.Y. C.P.L.R. 5602(a)(1)(i), a litigant may move in New York’s Appellate Division or in the New York Court of Appeals for permission to appeal from a final order of the Appellate Division which is not appealable as of right. The party seeking permission to appeal must demonstrate “why the questions presented merit review by [the New York Court of Appeals], such as that the issues are novel or of public importance, present a conflict with prior decisions of [the Court of Appeals], or involve a conflict among the departments of the Appellate Division.” 22 N.Y.C.R.R. § 500.22(b)(4).
Contact the Law Offices of David S. Rich, LLC to consult with a skilled appeals attorney about your appellate matter.
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