Second Department Rules of Practice in New York

The Second Department rules of practice are set out in 22 NYCRR Part 670 (the local rules of the Appellate Division, Second Judicial Department) and 22 NYCRR Part 1250 (the statewide appellate rules that apply across all four departments). Together they govern how you perfect an appeal, format briefs, file motions, request oral argument, and use the court’s electronic filing system. Where Part 670 and Part 1250 conflict, Part 670 controls.

The Second Department hears appeals from ten downstate counties: Richmond, Kings, Queens, Nassau, Suffolk, Westchester, Dutchess, Orange, Rockland, and Putnam.¹ If your appeal comes out of a trial court in any of those counties, these are the rules you need to follow.

The Six-Month Deadline to Perfect an Appeal

The single most important deadline in the Second Department is the six-month window to perfect the appeal. Unless the court orders otherwise, the appellant has six months from the date of the notice of appeal, or from the order granting leave to appeal, to file the complete record and the opening brief.²

Miss it and the appeal is deemed dismissed under 22 NYCRR 1250.10. No motion from the respondent is required. The court does not need to enter an order. The appeal simply ends.

If you can see the deadline coming and know you cannot meet it, apply for an extension before it passes. The application has to show good cause, such as record complexity, transcript delays, or conflicting litigation obligations. Waiting until after the six months have run to ask for more time is almost always a losing move.

Once the opening brief is served, the respondent has 30 days to file a responding brief, and the appellant has 10 days after service of that brief to file a reply.² Those deadlines run in calendar days. When the last day falls on a weekend or a court holiday, the filing is due the next business day. Every filing needs proof of service, usually an affidavit confirming delivery to opposing parties.

The Record on Appeal

The record on appeal is governed by 22 NYCRR 1250.7 and the local rules in Part 670. It consists of the notice of appeal, the judgment or order being challenged, and the full transcript of any relevant proceedings. A table of contents with page numbers is required so the justices can find individual documents quickly. An additional copy of the CPLR 5531 statement must be filed with the record.³

The CPLR 5531 statement is a one-page form identifying the index number, the court where the action started, and the full names of the original parties.⁴ It appears as the first item in the record. Blank forms are on the Unified Court System’s website.

You can use the appendix method instead of reproducing the full record. Under that approach you submit only the most relevant portions of the record, along with a statement of the issues and an index identifying each included document. It saves money when the trial record is long, but sloppy indexing or a missing document will get the filing rejected.

Brief Formatting and Word Limits

Brief requirements live in 22 NYCRR 1250.8. Computer-generated briefs use a serifed, proportionally spaced typeface such as Times Roman in 14-point type, or a serifed monospaced typeface such as Courier in 12-point type. Footnotes in proportional fonts must be no smaller than 12 points. Margins are one inch on all sides.⁵

An appellant’s or respondent’s principal brief cannot exceed 14,000 words. A reply or amicus brief is capped at 7,000. The counts include point headings and footnotes but exclude the table of contents, table of citations, proof of service, certificate of compliance, and any authorized addendum.⁵ Typewritten briefs follow page limits: 50 pages for a principal brief, 25 for a reply.

Every brief opens with a preliminary statement summarizing the nature of the case and its procedural history, and includes a table of authorities citing all cases, statutes, and other legal references. Narrow or condensed typefaces and condensed spacing are not permitted. Bold type and all-capitals are limited to headings and to quoted material that appeared that way in the original source.⁵

Motion Practice

Motion practice follows the statewide rule at 22 NYCRR 1250.4 as supplemented by local rule 670.4. Every motion includes a notice of motion, a supporting affidavit or affirmation explaining the legal and factual basis for the relief sought, and any relevant exhibits. A cover page identifies the attorney of record and the case index number. Exhibits should be clearly labeled.

Return Dates and Service

Motions are returnable at 10:00 a.m. on any Monday. If Monday is a legal holiday, the return date shifts to the first business day of that week.⁶ Motions must be filed with the clerk at least one week before the return date. Parties do not appear in person for motion arguments unless the court specifically directs them to.

Service of motion papers follows CPLR 2214(b): at least eight days’ notice before the return date.⁷ When service is by mail rather than in person, extra days are added under CPLR 2103. Cross-motions must be served personally, by overnight delivery, or electronically, and filed at least three business days before the return date.⁶

Digital Filing

Motion papers go through the court’s online portal, with digital service on all parties. Hard copies are not required unless the court asks for them. Attorneys and litigants who are exempt from electronic filing under 22 NYCRR 1245.4 file original hard copies instead.⁸

Oral Argument

Oral argument is available in most appeals, but you have to ask for it. The request appears on the front cover of your brief, along with the amount of time needed. If the brief carries no such notation, the appeal is deemed submitted on the papers.⁹

The Second Department allows a maximum of 15 minutes per attorney who has filed a brief. Only one attorney may argue per brief unless the court grants written permission at least seven days before the calendar date.¹⁰ The clerk calls the calendar at the start of the session to confirm who is present, so plan to arrive early.

Rebuttal is not permitted unless the court grants leave at the time of argument.¹⁰ Treat your 15 minutes as your only opportunity. Build your strongest points and anticipate the respondent’s arguments rather than counting on a chance to answer them afterward.

Some issues cannot be argued orally at all. The Second Department bars argument on maintenance, spousal support, child support, counsel fees, the legality or excessiveness of criminal sentences, sex offender registration determinations, grand jury reports, and a range of calendar and practice matters including venue changes, discovery disputes, and pleading corrections.¹⁰ Appeals on those issues are decided on the papers.

Electronic Filing and Fees

The Second Department uses the New York State Courts Electronic Filing system under 22 NYCRR Part 1245. Documents upload as searchable PDFs through the online portal. Filing the record on appeal carries a $315 fee, payable through the system.¹¹ Once processed, the system sends a notification email with the case number, which serves as proof of receipt.

For briefs, records, and appendices, the clerk reviews the electronic submission first. After the digital version is approved, the filer delivers one original and five hard copies within two business days of the approval notification. Without those hard copies, the filing is incomplete.¹² The hard copies must match the digital versions exactly.

Motion papers are on a different track. They stay digital, with no hard-copy follow-up unless the court asks for one.

Stays Pending Appeal

Filing a notice of appeal does not automatically stop enforcement of the lower court’s judgment. Without a stay, the winning side can begin collecting or enforcing while the appeal moves forward. This surprises many appellants.

CPLR 5519 lists situations that produce an automatic stay on service of the notice of appeal. The most common: if the judgment orders payment of money and the appellant posts an undertaking (a bond) in the full amount, enforcement is stayed without any court order.¹³ Appeals by the state or a political subdivision also trigger an automatic stay, though that stay is limited to 15 days when the lower court has ordered reinstatement of certain small-business or individual licenses.

Other automatic stays apply when the judgment directs delivery of personal property (if the property is placed in court-designated custody) or execution of an instrument (if the instrument is executed and deposited with the clerk). When none of those categories fits, the appellant must move for a discretionary stay, showing that the appeal has merit and that irreparable harm would result without one. The motion can be made in the lower court or directly in the Appellate Division.

Poor Person Relief

p>If you cannot afford filing fees, transcript costs, or other appeal expenses, CPLR 1101 lets you ask the Appellate Division to waive them. The motion needs an affidavit setting out your income, assets, and any real property, plus enough facts about the case for the court to evaluate its merit.¹⁴

The court may also require a certificate from an attorney stating that the attorney has examined the case and believes the appeal has merit. A party who had assigned counsel or a legal aid organization in Family Court and remains indigent is presumed eligible on appeal without a separate motion.¹⁴ Transcript costs run several dollars per page and can reach thousands in a long trial, so the relief matters.

Sanctions for Frivolous Conduct

Under 22 NYCRR 130-1.1 the court has broad discretion to impose financial sanctions on any party or attorney who engages in frivolous conduct. Sanctions can take the form of reimbursement for the opposing side’s actual expenses and reasonable attorney’s fees, a separate penalty payable to the court, or both.¹⁵

Conduct qualifies as frivolous if it is completely without legal merit and no reasonable argument supports it, if it is undertaken primarily to delay or harass, or if it relies on material factual statements that are false. Filing a baseless motion for sanctions is itself frivolous. The court weighs the circumstances, including how much time was available to investigate the position and whether the party kept pressing the argument after its weakness became apparent.¹⁵

Sanctions can hit the attorney personally, the law firm, or the party, and they can come on the court’s own initiative or by motion. In either case, the person facing sanctions must receive reasonable notice and a chance to be heard first.

Pro Hac Vice Admission

An attorney licensed in another state but not admitted in New York may apply for pro hac vice admission to practice before the Second Department. The admission lasts up to 18 months and is governed by Court of Appeals Rule 520.11 and the Second Department’s Rule 690.3.¹⁶

The application is made ex parte and requires a verified petition describing the applicant’s bar admissions and professional experience, a good-standing certificate from every jurisdiction where the applicant is admitted (issued within 30 days of the petition), and a letter from the grievance committee of each such jurisdiction disclosing any disciplinary history. The applicant must also affirm familiarity with New York’s Rules of Professional Conduct. Any missing document will stall the application, so out-of-state counsel should start assembling the paperwork well before filing deadlines in the underlying case.

1
New York State Unified Court System. Appellate Division – Second Judicial Department – History of the Court
2
Legal Information Institute. 22 NYCRR 1250.9 – Time, Number and Manner of Filing of Records, Appendices and Briefs
3
Legal Information Institute. 22 NYCRR 670.8 – Record and Briefs
4
FindLaw. New York Code CPLR Rule 5531 – Description of Action
5
Legal Information Institute. 22 NYCRR 1250.8 – Form and Content of Briefs
6
Legal Information Institute. 22 NYCRR 1250.4 – Motions
7
New York State Senate. New York Civil Practice Law and Rules Section R2214
8
New York State Unified Court System. 22 NYCRR Part 670 – Rules of Practice
9
Legal Information Institute. 22 NYCRR 1250.15 – Calendar Preference, Calendar Notice, Oral Argument, Post-Argument Submissions
10
New York State Unified Court System. 22 NYCRR Part 670 – Rules of Practice – Section 670.15
11
New York Courts. New York State Filing Fees
12
New York State Unified Court System. Electronic Filing Rules of the Appellate Division – Section 1245.6
13
New York State Senate. New York Consolidated Laws CPLR Section 5519
14
New York State Senate. New York Civil Practice Law and Rules Section 1101
15
Legal Information Institute. 22 NYCRR 130-1.1 – Costs
16
New York State Unified Court System. Attorney Matters – Admission Pro Hac Vice