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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

 

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