The Appellate Division, Second Department, like other sister departments, does not generally hear oral arguments over the summer. Our court does not sit in monthly terms; rather, we sit in one continuous term from January to December. July and August are utilized to work on and resolve previously calendared cases–these are typically complex matters on which there may be division among the panel–and to gear up for the court year ahead. With the coming and passing of Labor Day, and with the resumption of regular bench sittings, this seems an appropriate time to take stock of what we have achieved in the past year and to provide an update and report to the bar at large on our efforts to address our calendar challenges.

The Calendar

The Second Department is hearing and deciding cases at a record pace. From September 2018 through June 2019, the court disposed of 3,719 perfected cases, 933 more than the 2,786 cases disposed during the comparable period the year earlier and 484 more than were disposed in the 2016-2017 court year. The court's day and submission calendars during 2018-2019 totaled 3,822 cases, 229 more than in 2017-2018 and 295 more than in 2016-2017. These significant increases are attributable to the hard work and great effort devoted by the court's justices and the court's non-judicial staff and have been achieved despite two vacancies in the court's judicial complement and the retirement of senior, key staff members.

After years of regular increases in annual filings, the number of new appeals perfected during the 2018-2019 court year dropped somewhat. In 2018-2019, 3,530 new records were filed, as compared with 3,717 in 2017-2018, although the number of records filed in 2018-2019 was still higher than the number (3,467) filed in 2016-2017. But, most importantly, our outflow of dispositions (3,719) exceeded our intake of new appeals (3,530), meaning that we are beginning to cut into the roughly 3,000 case backlog that accumulated over the past decade.

The total number of appeals ready to be calendared but not yet calendared stood at 2,705 as of the end of June 2019. While this is an unacceptably high number, it is 38 cases fewer than the total as of June 2018. And if a 38-case decrease seems small, consider that this is the first decrease of any size in over a decade. It should also be noted that the 3,530 in new records might well have been lower but for our efforts to actively manage our criminal docket. We will no longer abide years of delay in the perfection of criminal appeals–such delays are not in the defendant's interest and are not in the public interest.

The inroads we are making into the reduction of our civil case backlog has not occurred by happenstance. Since January 2018, we have taken a number of actions to try to increase our output. In September and October 2018, we created three specialty benches to hear complicated and involved cases in the designated case types of commercial, matrimonial and land use appeals. From October 2018 through March 2019, the court added 4 cases to each regular sitting, bringing the number of cases on each day calendar to 24. The court also increased the number of limited-issue appeals being considered without oral argument on submission calendars. These efforts will continue in 2019-2020 with some changes.

This Fall, the court will have four specialty bench sittings, hearing commercial, matrimonial, estate and medical malpractice cases. We will continue to utilize submission calendars as a means for addressing limited issue appeals, such as criminal cases in which the only issue is whether the sentence is excessive. But, rather than adding 4 cases to each day calendar, the court is making a special effort to focus on its large volume of appeals in foreclosure matters.

Approximately one-third of the court's civil inventory consists of foreclosure cases.During the 2018-2019 court year, the bench made a concerted effort to harmonize its jurisprudence in this area. Having a consistent body of law should be helpful to the trial bench and the bar and, by reducing case law conflicts, ultimately bring about a reduction in the number of foreclosure appeals.

With the court now having established clear guidelines to apply in certain recurring situations, such as the sufficiency of affidavits on summary judgment motions, the court plans to create special, but regular, foreclosure-only submission calendars starting in the Fall. The use of these special foreclosure calendars should help advance the disposition of these appeals and should also free up slots on regular calendars for non-foreclosure civil appeals.

Mandatory Mediation

During 2018, the court launched a mandatory mediation program for perfected civil appeals, a program that complements the long-standing CAMP mediation program that targets appeals which have not yet been perfected. Mandatory mediation involves a settlement conference presided over by a special master designated on the basis of considerations of subject matter experience and geography.

The special master is required to devote 90 minutes pro bono to an effort to resolve the dispute between the parties; upon the expiration of the allotted time, the parties may opt to engage the special master for continued discussions. Between November 2018, when the program got off the ground, and June 2019, 125 mediation conferences were conducted and 28 cases were settled, a success rate of 22%. If 22% of our inventory settled, that alone would help achieve a real reduction in our backlog. We are hopeful, however, that the success rate of the special masters will increase.

While most attorneys recognize the importance of this program to our court, and the opportunity it provides to the litigants to obtain a fair resolution of their dispute, a few attorneys have failed to follow the program rules, such as by not appearing for mediation sessions or failing to cooperate with the special master. The bar is cautioned that such failures may result in the imposition of significant sanctions; at least one sanctions application is pending at the time of this writing.

Settlements

The Second Department encourages settlements and, during 2018, changed its policy so as to generally allow the discontinuance of a settled appeal, even after the appeal has been argued or submitted. However, the court has encountered an unfortunately high number of incidents in which an appeal was argued or submitted and the court was working on a decision, even though the case had been settled, with counsel advising the court only belatedly. This is unacceptable.

Failure to notify us of a settlement means that the justices and the non-judicial staff must devote–and waste–resources on a case that has been rendered academic, while hundreds of other cases await their turn. In March, 2019, the court amended its local rules of practice to provide that, when permission to withdraw an appeal is sought, counsel must submit documentation that establishes the date when the event giving rise to the withdrawal occurred and, where appropriate, an explanation for any delay (22 NYCRR §670.2).

In some instances, counsel attempted to justify failure to notify the court of a settlement by contending that, although a settlement was reached, the settlement had not yet been implemented, e.g., the funds had not yet been paid, the short sale of the property had not yet taken place. This is not a valid excuse.

Once a settlement is reached, the court is to be notified so that the case can be put on hold and unnecessary work on the matter can be avoided. Of course, if the settlement falls through, the appeal will be readily restored to active status, without losing its place on line. To make this clear, the court's local rules now provide that a settlement includes any oral or written agreement that may render determination of the case unnecessary (22 NYCRR §670.2[b]).

To illustrate how seriously the court takes this issue, on August 13,  2019, in Bank of New York Mellon v Smith, the court sanctioned the foreclosure plaintiff's trial counsel $1,000, the plaintiff $500, and the plaintiff's appellate counsel $250 for their conduct in a case in which the court was not notified, until just a few days prior to argument, of a settlement that had been reached months earlier. The decision explains that the rules are designed to protect the appellate courts from spending time working on matters that have been rendered academic and that, if timely notification had been given, the court "would have been able to devote additional resources to one of the many actual controversies that fill our docket."

Supplemental Records

The court continues to periodically review and update its local rules of practice. We have expanded the use of e-filing to include the entire Ninth Judicial District, Suffolk County, Queens County and Richmond County. We have revised the rules governing the submission of digital copies of the record and amended the technical rules and guidelines to permit hyperlinking, not just bookmarking, of citations in briefs. The court has recently revised its rules concerning supplemental records in order to clarify that, absent permission from the court, a supplemental record can only be used to supply material that should have been part of the original record but was inadvertently omitted (22 NYCRR §670.7).

Courtroom Technology

Over the summer, with the help of both the OCA Technology Department, led by the very able Sheng Guo, the court's own IT gurus, and the New York City Department of Citywide Administrative Services, our courtroom at 45 Monroe Place has been outfitted with the most up-to-date technology, the centerpiece of which is a large screen computer, to be used for video appearances and for courtroom presentations.

The judges will have individual monitors at their seats on the bench. With this technology in place, starting in September, counsel, if they so desire, will be able to present their arguments without the necessity of a physical appearance in Brooklyn and will also be able to use the equipment to enhance their arguments. The justices, likewise, will be able to utilize the latest technology during arguments. Counsel who wish to use the equipment should contact Aprilanne Agostino, the clerk of our court, at [email protected].

Appearances of Counsel

The court has updated and clarified its rules governing the appearance of counsel  (See 22 NYCRR §670.1[c]). Under those rules, unless the court permits otherwise, a party may have only one counsel of record, who can be either an individual or a law firm. Where counsel files a notice of appeal on behalf of a party, counsel becomes the attorney of record for that party, unless the notice of appeal states that counsel was not retained for appellate purposes or counsel was assigned by the trial court and the assignment has not been extended.

If a party does not have an attorney of record in this court, an attorney who files a document for such party becomes the party's attorney of record. For example, if counsel files papers on behalf of a respondent in opposition to a motion by an appellant for a stay, and no other paper has yet been filed by the respondent, counsel, in filing the opposition papers, becomes the respondent's attorney of record. Papers filed by an attorney who is not the attorney of record will not be accepted.

Counsel may be retained by counsel of record to serve as appellate counsel. However, all other parties and the court must be notified of that status and all papers served by appellate counsel must bear the name and address of counsel of record and indicate appellate counsel's status as such.

Motions

Last year at this time, I advised the bar that the court had adopted a new, firmer approach to motions for extensions of time to file records and briefs. One of the reasons for this was to reduce the crushing volume of motions that are made every year. In 2018, the court decided 10,383 motions; in contrast, our colleagues in the First Department decided only about half as many, 4,947.

Processing, review, deliberation and disposition of ten thousand motions takes significant resources.  While a considerable number of motions involve important issues, such as motions for stays pending appeal, other motions, such as a third or fourth motion for the extension of the time to file a reply brief, may be readily avoided. The court expects that the bar will respect and comply with the deadlines fixed in the statewide Practice Rules of the Appellate Division and will seek variances only in exceptional circumstances. The court's new policy is bearing fruit; the most recently available statistics for 2019 indicate that the court has decided 367 few motions than the year before.

Conclusion

Justices of the court are an incredibly hard-working, talented, caring and collegial group. Each and every one of them is devoted to providing the best possible appellate justice to the people of the Second Judicial Department. Despite significant structural obstacles, and limitations on the available resources, the justices, aided by our fine and incomparable non-judicial staff, have been making great strides in dealing with our accumulated backlog. It is my high honor to be associated with these outstanding jurists. We look forward to returning to work with renewed vigor and to resume our efforts to enhance our service to the people of this great state.

Alan D. Scheinkman is the presiding justice of the Appellate Division, Second Department.