IV. Rule 500.11 Review Alternate Procedure for Selected Appeals
IV. RULE 500.11 REVIEW -- ALTERNATIVE PROCEDURE FOR SELECTED APPEALS
A. What Is It?
Sometimes referred to as the Sua Sponte Merits examination or SSM, alternative review is in essence the presentation of an appeal to the full Court without oral argument.
B. When Is It Invoked? -- Criteria in 22 NYCRR 500.11(b)
Rule 500.11(b) states: Appeals may be selected by the Court for alternative review on the basis of (1) the presence of lower courts' nonreviewable discretion, mixed questions of law and fact or affirmed findings of fact, all of which are subject to a limited scope of review; (2) clear recent controlling precedent; (3) narrow issues of law not of overriding or State-wide importance; (4) nonpreserved issues; (5) a party’s request for such review or (6) other appropriate factors.
C. Countering Misconceptions about the Alternative Procedure
1. Alternative review is not used only when the Court decides to affirm. 2. Rule 500.11 appeals are decided by the full Court. The deliberative process is essentially the same for all appeals. Consequently, a Rule 500.11 appeal receives the same attention as a normal course appeal.
D. Benefits of the Alternative Procedure
1. Time saving for the Court and parties. Appeals pursuant to Rule 500.11 reach disposition in almost one-half the time taken to dispose of appeals heard on full briefs and oral arguments. 2. Conserves judicial and attorney resources as well as legal expenses.
E. How the Alternative Procedure Works
1. The Clerk initiates the alternative procedure after reviewing appellant's preliminary appeal statement (see 22 NYCRR 500.9), or the Court or an individual Judge may recommend such treatment in granting leave to appeal. After submissions are served and filed by all parties, the case is assigned to a reporting Judge. That Judge is free to terminate the alternative procedure without a report or the Judge may prepare a report to terminate the alternative procedure setting forth reasons why full briefing and oral argument are necessary. If the reporting Judge decides to maintain the alternative procedure, a written report on the merits of the case is prepared. The report and any writings by the courts below are circulated to all of the other Judges and are considered and voted on by the entire Court.
2. An appellant may request to proceed under the alternative procedure in the preliminary appeal statement or motion for leave to appeal. On an appeal, respondent may request alternative review by letter to the Clerk of the Court, with proof of service of one copy on each other party, within five days after the appeal is taken.
3. If you receive a Rule 500.11 letter from the Court and you do not wish expedited treatment, your response must be in two parts. First, state objections to the procedure and the reasons supporting them. Note that the guidelines in Rule 500.11(b) include a catch-all subdivision, (b) (6); therefore, counsel are advised to also include reasons why full briefing and oral argument would be of particular benefit in your case. Second, present arguments on the merits of the appeal in case the Court decides to continue alternative review over your objection.
4. Arguments on the merits: In a letter of no more than 7,000 words (see Rule 500.11[m]) explain the essential facts of your case, the holding of the courts below and the best arguments for your position. Importantly, Rule 500.11(f) states: "A party shall be deemed to have abandoned any argument made in the intermediate appellate courts briefs not addressed or reserved in the letter submission to this Court."
Reprinted from The New York Court Of Appeals Civil Jurisdiction And Practice Outline, September 2020, See https://www.nycourts.gov/ctappS/forms/civiloutline.pdf [Last accessed August 21, 2021]