Current through Register Vol. 43, No. 52, December 29, 2021
Section 500.11 - Alternative procedure for selected appeals(a) On its own motion, the court may review selected appeals by an alternative procedure. Such appeals shall be determined on the intermediate appellate court record or appendix and briefs, the writings in the courts below and additional letter submissions on the merits. The clerk of the court shall notify all parties by letter when an appeal has been selected for review pursuant to this section. Appellant may request such review in its preliminary appeal statement. Respondent may request such review by letter to the clerk of the court, with proof of service of 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 findings of fact, which are subject to a limited scope of review;(2) recent, controlling precedent;(3) narrow issues of law not of statewide importance;(4) unpreserved issues of law;(5) a party's request for such review; or(6) other appropriate factors.(c) Appellant's filing. In addition to the submission in digital format required by subdivision (k) of this section, within 25 days after the date of the clerk of the court's letter initiating the alternative review procedure, appellant shall: (1) file three copies of the intermediate appellate court record or appendix and three copies of each brief filed by each party in the intermediate appellate court. Original exhibits to be relied upon which are not in the record or appendix at the intermediate appellate court shall be filed or, if they are on file with the clerk of the trial court, subpoenaed to this court and the court so advised by letter. Such exhibits shall be clearly identified and, where appropriate, their authenticity shall be certified or stipulated to;(2) file an original and two copies of a letter stating its arguments in support of appellant's position on the merits. If appellant objects to review pursuant to this 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. In addition to the submission in digital format required by subdivision (k) of this section, within 20 days after service of appellant's submission, respondent shall file an original and two copies of a letter stating its arguments in support of its position on the merits. If respondent objects to review pursuant to this section, the letter shall also explain that position. Respondent shall 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 on the 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 letter submission to this court.(g) Review of subject matter jurisdiction. An appeal selected for review pursuant to this section is subject to dismissal on the court's own motion, should it be determined that the court is without subject matter jurisdiction.(h) Related litigation. Where necessary, each letter filing shall indicate the status 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 court will 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 original and two copies of an amicus curiae submission without leave of the court, with proof of service of one copy on each party. Any other proposed amicus curiae shall request amicus curiae relief pursuant to section 500.23(a)(2) of this Part.(k) Companion submission in digital format. Each appellant, respondent and amicus curiae shall submit in digital format its letter stating its position on the merits or its amicus curiae argument. The letter in digital format shall be identical to the filed original printed letter, except it need not contain an original signature. Appellant shall also submit in digital format each brief filed by each party in the intermediate appellate court, the intermediate appellate court record or appendix, and original exhibits to be relied upon that are not in the record or appendix at the intermediate appellate court. All material submitted under this section shall comply with the technical specifications and instructions for submission available from the clerk's office. Unless otherwise permitted by the clerk of the court, letters, intermediate appellate court briefs and records or appendices in digital format shall be received by the clerk's office no later than the filing due date for the printed materials.(l) All submissions under this section shall comply with the requirements of section 500.5 of this Part regarding sealing and redaction.(m) Word and page limits. Submissions pursuant to subsections (c)(2), (d) and (j) of this section and subsection 500.23(a)(2) of this Part shall not exceed 7,000 words if prepared by a word-processing system and shall not exceed 20 pages if typewritten or handwritten. The person whose signature appears on a submission prepared by a word-processing system shall certify the total word count for the text of the submission. The certification may rely on the word count of the word-processing system used to prepare the submission. The word and page limits of this subsection apply to the body of the submission and are exclusive of the information required by subsection 500.1(f) of this Part and subsection (h) of this section.
N.Y. Comp. Codes R. & Regs. Tit. 22 § 500.11Amended New York State Register June 22, 2016/Volume XXXVIII, Issue 25, eff. 6/22/2016