An experienced New York appellate attorney understands that all judges make mistakes. While not all adverse determinations by courts can (or should) be appealed, you should always consult with a lawyer before abandoning your civil or commercial claim. It is vital that you act quickly — there are strict filing deadlines in both New York and federal appeals. If you do not meet these deadlines, the court will dismiss your appeal and uphold the lower court’s decision.
What We Do
A New York appellate attorney at our firm will 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, a skilled New York appellate attorney will provide you with substantial experience litigating, on behalf of companies 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. To learn more about this process, contact a New York appellate attorney at the Law Offices of David S. Rich, LLC.
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, a skilled New York appellate attorney will provide you with substantial experience litigating, on behalf of entities and individuals, these appellate motions and many 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).
New York’s Appeal Process
Filing a Notice of Appeal is simply the first step in a lengthy and complex appeal process. Your New York appellate attorney will file written briefs, motions, and responses on your behalf. These filings should be part of a comprehensive strategy that advances your business’s interests and persuades the appellate court to decide in your favor.
Different standards of review apply in different types of appeals. Unlike a lower court or administrative agency, courts of appeals typically do not review new evidence or hear additional testimony. Instead, they analyze the lower court’s judgment or order and decide whether to overturn it or to remand the matter. Depending on the standard of review, the appellate court’s analysis may be broad or very narrow. Typically, you must show that the lower court abused its discretion or made a reversible error. De novo review (by which the appellate court reviews afresh the lower court’s decision, including findings of fact) is relatively rare.
Why Should I Hire a New York Appellate Attorney?
Both in the New York state courts and in the federal courts, appeals involve complicated procedures and analysis. Without the guidance of an experienced New York appellate attorney, you are likely to make serious mistakes that unduly increase your expenses, that delay your appeal, or that cause the appellate court to dismiss or deny your appeal. Before you prosecute an appeal on your own, consider the following issues:
- On appeal, you will not have a new trial. Instead, the appellate court will assess the record, review your legal arguments, and determine whether the lower court or administrative agency committed reversible error. If you do not understand the legal issues involved in your case (as well as the applicable standard of review), you cannot properly present your claim on appeal.
- Written arguments and cogent legal analysis are vital to a successful appeal. No matter how well-founded your contentions on appeal are, your success depends on the ability of your lawyer, on your behalf, to clearly and persuasively explain, in written briefs, your contentions.
- Appellate briefs are memoranda which set forth the facts accurately but in a light favorable to the client, and which compellingly maintain that the lower court misapprehended the facts, wrongly stated the law, or misapplied the law to the facts. Further, appellate briefs must follow a highly prescribed format. Most business owners simply cannot, on their own, draft convincing and rule-compliant briefs on appeal.
- New York appeals require a well-crafted and detailed strategy. A successful appeal also requires a thorough understanding of the applicable laws and a well-plotted, personalized appellate strategy. Without skilled legal representation, you are highly likely to overlook important legal issues and to violate rules of appellate procedure. Further, your lawyer can aid you in assess the benefits and risks of bringing particular appellate motions and of requesting and delivering oral argument.
- Experience matters. Many trial lawyers are adept at presenting evidence and communicating with juries. However, these skills do not always carry over to an appellate practice. As your appeal progresses, the standard of review typically becomes increasingly narrow (reducing your likelihood of reversing the trial judge’s decision). With so much at stake, you should always hire an experienced New York appellate attorney who, while complying with the court of appeals’ procedures, will convincingly present, to the appellate court, your most persuasive bases for overturning the lower court’s judgment or order.
Discuss Your Case with a New York Appellate Attorney
The Law Offices of David S. Rich, LLC represents clients on appeal in a wide variety of civil, commercial, employment, and securities matters. We craft our strategies on appeal to best serve the particular needs of each client. Further, we tenaciously advocate for our clients.
If you are considering appealing an adverse decision by a court, or if an adverse litigant has served you with a Notice of Appeal, immediately contact the Law Offices of David S. Rich, LLC.
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