Bringing stays in the Appellate Division: Nuts and Bolts

 

Claire V. Merkine, Esq.

The Legal Aid society, Juvenile Rights Practice

New York. NY

 

 

 

I.                  Applicable Provisions

Ø                                        Fam. Ct. Act § 1112 (appealable orders)

Ø                                        Fam. Ct. Act § 1114 (Effect of appeal; stay)

II.               What to do in Family Court 

Ø                                        Ask for a stay of the order in Family Court pending stay request in AD:

²                In Article 10/10A proceedings where the Family Court issues an order returning child who was previously remanded to the respondent, order is automatically stayed until 5 p.m. of the next business day unless all parties waive such stay (Fam. Ct. Act § 1112(b))

Ø                                        Get written order

Ø                                        File a Notice of Appeal (if appealing from Order of Disposition or from interim order in Article 10 case § 1112)

²                AD2: attach RADI form.

Ø                                        Order Minutes overnight

Ø                                        If requesting interim relief (see below) inform adversaries 24 hours in advance to meet you at AD

III.           Decide Whether Interim Relief is Needed

Ø                                        The relief requested in a stay application is to stay the order pending an appeal.

Ø                                        When moving for a stay, can request interim relief --  a stay of the order pending the determination of the OTSC/motion which seeks a stay pending appeal.

Ø                                        If no interim relief needed, application should generally be done by notice of motion.  

Ø                                        If interim relief needed, then the application will be require personal appearance at the Appellate Division

IV.           Stay Papers

Ø     First Department :

²                Notice of Motion + Affirmation

§        Leave Return Date Blank

§        Be sure to attach as exhibits (i) Order (ii) Notice of Appeal (if appeal as of right).

§        If appealing interim order in non-Article 10 proceeding, request permission to appeal.

²                Interim relief is requested by completing Appellate Division Form for Expedited Relief.  

§        This is the form the reviewing judge will sign either granting or denying interim stay. 

§        This form will contain the due date for any responses/replies to the motion.

Ø     Second Department :

²                Order to Show Cause + Affirmation

§        Leave Return Date Blank

§        Include interim relief in OTSC

§        Be sure to attach as exhibits (i) Order (ii) Notice of Appeal + RADI (if appeal as of right)

§        If appealing interim order in non-Article 10 proceeding, request permission to appeal.

²                Bring unstapled notice of appeal and RADI form to AD.

Ø                 Number of copies: 

²                                                                                                    Original for court plus one copy for each of your adversaries and one copy for yourself. 

²                                                                                                    Services to adversaries usually done in court.  If other parties do not appear, service done in manner designated by court in OTSC or Expedited Relief Form

²                                                                                                    NOTE:  If the Court changes any language on your request for relief, or anything else, you will need to conform the copies to the one signed by the judge.

V.              What to do in Appellate Division When Seeking Interim Relief

Ø     Filing of papers:

²                First Department:

§         wait for adversaries to appear and serve them with papers (you are not required to provide papers in advance). 

§        Go to clerk’s office. Tell clerk you are there on a stay application and file motion.

²                Second Department:

§        File OTSC 

§        Wait for adversaries and serve them with copy, and notify clerk that everyone is present. 

Ø    Oral argument: 

²                                                                                                    After papers filed, they will be passed on to court attorney.

²                                                                                                    Court attorney will be called and will review papers.   Will ask moving party to state its reasons for the relief requested.  Other parties will also argue their positions.

²                                                                                                    After argument,  the court attorney will then take the papers to the judge on duty that day. 

²                                                                                                    In the First Department, court attorney will sometimes return with signed papers; other times she will take parties to see the judge.  The judge will then hear oral argument from all parties at his/her chambers, and will make decision.

²                                                                                                     In the Second Department, counsel almost never see the judge.  The court attorney will return with the papers signed and the relief granted or denied.  The signed order will also include a return date for answering papers and due date for service on missing parties.

 

IV.     After Appellate Division

²                            Serve all missing parties with papers.

²                            If not moving party, file response to papers by return date.

²                            NO ARGUMENT IS HEARD ON MOTION PAPERS.  The only argument is heard on the application for interim relief pending a decision on the OTSC.  Once the papers are submitted, the court will make a decision on the papers only

V.      Content of Stay Papers

Ø     Standard for relief:

²    Likelihood of Success on the Merits

²    Irreparable Harm to Client/Child

Ø     Make sure that the record is adequate

²                Record Sufficient?  If not, consider filing papers asking Family Court to reopen/ reconsider instead of going to the Appellate Division.

 

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Last updated January 11, 2010

 

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