Mandatory e-filing in the New York Appellate Division, First Department

After years of slow walking, COVID-19 finally propelled the New York Appellate Division, First Department over the finish line: mandatory e-filing now applies to all matters originating in New York and Bronx counties, whether they were e-filed in the lower courts or not.

The good news was announced to us, members of the New York bar, on July 27, 2020. Here it is if you missed it:

What does that mean for you, my dear attorney colleagues? In short, you should pay careful attention. If you handle any matter in New York or Bronx county and it ends up on appeal, there are certain steps you must take to comply with the e-filing rules.

First, if you are the attorney for the appellant, you have to enter, or confirm, your NYSCEF registration and enter the details of the appeal so the Appellate Division will issue you a docket number. You must do this within 14 days of filing your notice of appeal (which, if your matter is e-filed in the lower court, will also be done on NYSCEF).

The two dockets—the one for your lower court case and the one for your appeal—are different so you must complete the registration for the appeal, even if you already appear on NYSCEF as the attorney of record in the lower court. I have seen several attorneys get trapped by this rule—and it requires a humble motion to the the Appellate Division to excuse the mistake of not registering in time.

There’s more: after you get a docket number, you have to send a notice to your adversary (i.e., the respondent’s attorney) notifying them of the docket number and informing them of the requirement that they enter, or confirm, their NYSCEF registration on behalf of the respondent within 20 days. The notice must be sent by regular mail.

Also important: you, respondent’s attorney must complete the registration or you will not get the NYSCEF emails with the documents filed by the appellant. In that case, you will have to diligently check the appeal docket to ensure you don’t miss a filing (and thereby default on the date for filing your responding brief)—or you, too, will have to make the humble motion referenced above.

Keep in mind that what I’ve described in this post is only a snippet of the rules you have to follow when your matter is appealed. There is so much more, because appellate practice is heavy on the rules (as I’ve written about before). If you aren't familiar with the Appellate Division rules, or your eyes glaze over as you try to understand them all, get in touch—I’d be happy to help you navigate the appeal process as you serve your client.