This year my practice was full of heart-thumping deadlines, mind-stretching legal puzzles, and creative argument making. Like any appellate attorney worth her salt, I had some self-satisfying wins and some disappointing losses.
As the year draws to a close, I want to memorialize two wins that were not the most earth-shattering but reminded me how much I love to work with lawyers and their clients on appeals. I’m calling them my “big little wins” because they did not involve a dramatic change in the law, though they did help two of my clients take a step closer to their hard-fought goal: to save their homes from foreclosure.
In this post (Part 2 of 2; read Part 1 here), I tell you about a near disaster with a cross-motion I filed for my client at the Appellate Division—one that I avoided with deft, on-the-spot, persuasive argument-making. It was also a win for the rule of law, as you will see below.
The case involved my client’s appeal of a summary judgment order rendered in a foreclosure case (my client is the homeowner, of course). While her appeal was pending, a final judgment of foreclosure and sale was entered, which made her appeal from the summary judgment order moot (per the settled law on this point).
Armed with its judgment, the bank made a motion to dismiss my client’s appeal. But, because I have significant experience with foreclosure defense appeals, I knew about a procedural twist that would save my client’s appeal: a cross-motion asking the Appellate Division to deem the appeal from the summary judgment order a premature appeal from the judgment, and to permit my client to incorporate the appeal arguments we already raised into her appeal from the judgment.
I prepared the cross-motion with this request, and duly served it on the bank. Then, being the careful appellate attorney that I am, I checked and rechecked the Appellate Division’s rules on cross-motions (note: these rules were dramatically changed in September 2018, and this was my first cross-motion under the new rules). The rules say this about the deadline for filing a cross-motion:
1250.4(a)(6) – A cross motion shall be…filed at least three business days before the return date.
The return date for my client’s cross-motion was on a Monday, at 10:00 a.m. (note: under the new rules, all motions and cross-motions must be returnable on a Monday at 10:00 a.m.).
After reading and re-reading the rules several times, what day do you think I put in my calendar as the deadline for filing my client’s cross-motion? If you answered the Wednesday before the return date, then you gave the same answer as every lawyer and printer I have asked this question—and it is what I understood the deadline to be.
So, I showed up on Wednesday and handed my cross-motion to the filing clerk. If you have ever filed papers at the Appellate Division, you know the moment that came next: the clerk ruffling through my papers, eyeing certain parts intently, while I held my breath, hearing only the sound of my heartbeat, waiting for good or bad news (because the clerks love to reject papers on the smallest technicality and there is always a moment of anxious suspense while you wait for their approval).
The clerk looks up and said, “great, I’ll take these to the motion office.”
I sighed a breath of relief. It was a good sign. A few moments later, though, the clerk returned and said:
“I’m sorry, we’re rejecting your papers.”
“What? Why?”
“Because you are required to file a cross-motion three business days before the return date.”
“But this is three business days before the return date…”
“No, three business days before the return date is Tuesday because we don’t count the first or the last day.”
For an instant, I stood shocked as adrenaline rushed through my veins.
Then I focused. And my quick-firing mind shot into gear.
“That is not the way time is counted in the CPLR (Civil Practice Law and Rules). You do not count the first day, only the last one. Give me two minutes to find a citation and I will request that you accept this cross-motion as timely.”
I pulled up Lexis on my iPad and did a swift search. My split-second argument had been half right: the law telling lawyers and courts how to count time does say we count the last day but not the first. But it was not in the CPLR, it was in the General Construction Law. I jotted down the statute and a case I found applying it to actions by a clerk. I took it back to the clerk.
He listened to me patiently as I explained that every other action taken in the courts of New York involves counting time to exclude the first day and include the last day. For this cross-motion rule, the last day is the return date and the day of filing is the first day. So my client’s cross-motion should be due on Wednesday, the day of filing, which is three business days (counting Thursday, Friday, and Monday) before the last day, the return date.
The clerk took my flash-citations back to the motion office. I waited…thinking about the tragic consequence of my client’s cross-motion being rejected: her pending appeal would be dismissed due to a procedural technicality.
When the clerk came out again, I looked at him impassively.
“Good news, we’re accepting your papers in the interest of justice.”
I let out a deep breath and savored the little big win. I just convinced the clerk to accept my paper through an unrelenting focus on the law and the rules. I didn't beg. I didn’t yell. I didn’t invoke my authority or experience as a lawyer (pro tip: the clerks hate that). I simply found an applicable statute and case and I dispassionately made a compelling case. And it worked. It was as much a win for the rule of law as for me and my client.
Get in touch if you would like me to find and write a winning argument for your client’s case. I’m looking forward to more big, and big little, wins in 2020.
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