N.Y. Comp. Codes R. & Regs. tit. 22 § 600.12

Current through Register Vol. 46, No. 18, May 1, 2024

Section 600.12 - Preference; dismissal of appeal or cause; dismissal calendar calls

(a) Preference.

(1) Any party to an appeal entitled by law to a preference in the hearing of the appeal may serve and file a demand for a preference which shall set forth the provision of law relied upon for such preference. If the demand is sustained by the court, the appeal shall be preferred.

(2) A preference under CPLR 5521 may be obtained upon good cause shown in an application made to the court on notice to the other parties to the appeal.

(b) Dismissal of appeal or cause. In the event the appellant or moving party fails to prosecute the appeal or cause within the time prescribed by this Part, or fails to restore an appeal or cause to the calendar within 60 days after it has been marked off the calendar, any other party to the appeal may move to dismiss the appeal for lack of prosecution on eight days' notice. The moving papers on such an application must include a copy of the notice of appeal.

(c) Dismissal calendar calls.

(1) In May of each year the clerk shall make up a calendar of all civil appeals or causes not brought on for hearing within nine months from the filing of the record or papers upon which the matter was to be heard, exclusive of such appeals or causes which are then on the calendar or were marked off the calendar less than 60 days prior to May first.

(2) In May and October of each year the clerk shall make up a calendar of all criminal appeals or causes and all appeals involving writs of habeas corpus in criminal causes not brought on for hearing within, 18 months of the awarding of poor person relief, exclusive of such criminal appeals or causes which are then on the calendar or were marked off the calendar less than 60 days prior to the calendar call. Fifteen days' notice of the time and date of such dismissal calendar call, and of the opportunity to submit an affidavit thereupon pursuant to paragraph (4) of this subdivision, shall be given to the appellants by ordinary mail; if the appellant is a defendant such notice shall be at his last known place of residence, or if imprisoned, at the institution at which confined, and similarly to his attorney if any upon the appeal or who last appeared for him.

(3) The calendars so prepared shall be published in the New York Law Journal for five consecutive days and called by the clerk on the fifth day of publication. The clerk shall cause a notice to be published in the New York Law Journal during the same period calling attention to the publication of the calendars and stating the date and time the calendars will be called.

(4) In the event the appellant or moving party fails to submit an affidavit with proof of service of a copy thereof prior to or on the call of any of the calendars referred to in paragraphs (1) and (2) of this subdivision satisfactorily explaining the delay and containing the following information:

(i) the nature of the order or judgment appealed from;

(ii) the date the judgment or order appealed from was entered or, if the matter was transferred to this court pursuant to CPLR 7804, the date of the order of transferral;

(iii) the date the notice of appeal was served;

(iv) whether any enlargement of time to perfect the appeal has been granted; and

(v) in the case of criminal appeals, the sentence imposed and whether the defendant is on probation or parole, or free on an order of stay of judgment pending determination of the appeal; an order will be entered dismissing the appeal or cause.

N.Y. Comp. Codes R. & Regs. Tit. 22 § 600.12