You are here: / / UNDER THE NEW APPELLATE PRACTICE RULES FOR CROSS-APPEALS, DEFENDANTS ABANDONED...

UNDER THE NEW APPELLATE PRACTICE RULES FOR CROSS-APPEALS, DEFENDANTS ABANDONED THIER APPEAL BECAUSE THEY DID NOT FILE THEIR BRIEF WITHIN SIX MONTHS OF FILING THE NOTICE OF APPEAL; THE COURT OPTED TO WAIVE DEFENDANTS’ NONCOMPLIANCE AND DEEMED THE CROSS APPEAL PROPERLY BEFORE THE COURT (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Lynch, discussed the applicability of the new practice rules for appeals to cross-appeals:

… [T]he new practice rules pertaining to cross appeals specify that “[t]he party that first perfects the appeal shall be denominated the appellant-respondent” (Rules of App Div, All Depts [22 NYCRR] § 1250.9 [f] [1] [iii]). Until such time as either party has perfected, the identity of a party as either an appellant-respondent or a respondent-appellant remains to be determined. Having filed a notice of cross appeal on June 2, 2020, defendants had until December 2, 2020 to perfect their appeal or otherwise seek an extension. Defendants failed to do either. For this reason, plaintiff maintains that the cross appeal was effectively abandoned and technically plaintiff is correct. The rules, read as a whole, require each party to preserve its position until such time as one of the parties actually perfects its appeal. That said, the rules require the parties to “consult and make best efforts to stipulate to a briefing schedule” (Rules of App Div, All Depts [22 NYCRR] § 1250.9 [f] [1] [i]), and there is no indication in this record or the briefs that such consultation occurred here. In any event, since this is our first decision addressing implementation of the new practice rules relating to cross appeals, we opt to waive defendants’ noncompliance and deem the cross appeal properly before us (see Rules of App Div, All Depts [22 NYCRR] § 1250.1 [g]). New York Mun. Power Agency v Town of Massena, 2021 NY Slip Op 04268, Third Dept 7-8-21

 

You might also like
Town, In Reviewing a Special Use Permit Application Under Its Zoning Regulations after the State Environmental Quality Review Act (SEQRA) Environmental Impact Statement (EIS) Process Is Complete, Must Rely on the SEQRA Findings and Cannot Make Further Environmental Impact Findings
ALTHOUGH RPTL 421-A DOES NOT EXPLICITLY ALLOW JUDICIAL REVIEW OF THE COMPTROLLER’S TAX RULINGS, THE CASE LAW SUPPORTS THE AVAILABILITY OF ARTICLE 78 REVIEW; THEREFORE THE STATUTE IS NOT UNCONSTITUTIONAL (THIRD DEPT). ​
UNDER THE EDUCATION LAW, A CHARTER SCHOOL HAS THE AUTHORITY TO OVERSEE ITS OWN PRE-KINDERGARTEN PROGRAM, THERE IS NO STATUTORY AUTHORITY FOR CONTROL OF THE PROGRAM BY THE DEPARTMENT OF EDUCATION OR A SCHOOL DISTRICT.
HABEAS CORPUS IS NOT A VEHICLE FOR RELIEF FOR ISSUES WHICH COULD HAVE BEEN RAISED ON APPEAL AND IS NOT AVAILABLE UNTIL A PRISONER IS ENTITLED TO IMMEDIATE RELEASE (THIRD DEPT).
THE OPINION EVIDENCE THAT CLAIMANT’S PRE-EXISTING HEART CONDITION WAS A HINDRANCE TO HER EMPLOYABILITY WAS INSUFFICIENT, THE WORKERS’ COMPENSATION CARRIER, THEREFORE, WAS NOT ENTITLED TO REIMBURSEMENT FROM THE SPECIAL DISABILITY FUND (THIRD DEPT).
THE CONVICTION UPON WHICH DEFENDANT’S SECOND-FELONY-OFFENDER STATUS WAS BASED WAS MORE THAN 10 YEARS BEFORE THE CURRENT OFFENSE AND THE PEOPLE DID NOT DEMONSTRATE THAT ANY PORTION OF THE 10-YEAR PERIOD WAS TOLLED BY INCARCERATION; SENTENCE VACATED AND MATTER REMITTED FOR A HEARING AND RESENTENCING (THIRD DEPT). ​
SUPREME COURT SHOULD NOT HAVE DEVIATED FROM THE STIPULATION ENTERED INTO BY THE PARTIES WHICH DESCRIBED THE DAMAGES AVAILABLE UNDER REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) FOR THE INADVERTENT REMOVAL OF TREES FROM PLAINTIFFS’ PROPERTY BY DEFENDANTS (THIRD DEPT).
No Question of Fact Raised About Whether Buyer Was a Bona Fide Purchaser

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE COMPLAINT STATED A CAUSE OF ACTION FOR BREACH OF CONTRACT; THE COMPLAINT... THE DENIAL OF DEFENDANT’S REQUEST FOR A CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION...