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]