Impediments to "Albert Pujols Status": Some Danger Zones and Safety Nets in New York Appellate Practice

By Markarian, Edward J. | Albany Law Review, Summer 2019 | Go to article overview

Impediments to "Albert Pujols Status": Some Danger Zones and Safety Nets in New York Appellate Practice


Markarian, Edward J., Albany Law Review


INTRODUCTION

During his term on the Court of Appeals, Judge Eugene F. Pigott, Jr., regularly lectured on the topic of appellate practice. His presentations were informative and entertaining, and I often think about one of his comments. He observed that when Albert Pujols, the great baseball player, comes up to bat, he is not thinking about the rules of the game. He just plays the game. The rules are part of his subconscious. He is focused upon getting the best result in relation to the projectile screeching toward him at one hundred miles per hour, and he makes his five hundred 500-foot redirection of the projectile seem routine. He is in "the zone." Judge Pigott encourages appellate practitioners to master the rules of our craft to an unconscious degree, so that we can make our advocacy as pure as Albert Pujols' home run swing. (1)

I consider Judge Pigott's Albert Pujols comments in juxtaposition to the statement, now appearing in the Siegel and Connors' New York Practice treatise, which I read when drafting my first notice of appeal thirty years ago. To this day, I think about this statement every time I draft a notice of appeal. It suggests, "The 'taking' of the appeal, [as compared to perfecting it], although it confronts a rigid time limitation, is probably the easiest step in civil practice. It's just the service and filing of a paper, or at worst several papers." (2)

The quoted statement scared me thirty years ago and it scares me even today because, whenever I draft a notice of appeal, I imagine, based upon the language of New York's Civil Practice Laws and Rules (CPLR) and the cases interpreting it, the numerous opportunities for me to blunder the easiest step in civil practice!

For me, even this easiest step is not easy, and I have practiced long enough to have experienced some of the harder steps. Considering this, I view the goal of executing appellate practice "in the zone," like Albert Pujols, as formidable. Thankfully, projectiles aimed at appellate practitioners are not traveling one-hundred miles per hour. The speed of our challenges is measured in increments of, sometimes days, and usually months. This is helpful, but only to a degree. Albert Pujols faces just one pitcher at a time. Depending on caseload, appellate practitioners can be bombarded.

Albert Pujols status requires the ability to swing freely. The rules of the game can impede it. Under the appellate practice rules for New York practitioners, (3) our swings may be restricted, or entirely thwarted, if we fail to appreciate requirements under New York's Constitution, (4) statutes, (5) and court rules. (6) Issues must be recognized, and then the comprehensive resources and treatises considered. (7) This Article encourages practitioners to take advantage of those resources, which are impressive in their thoroughness and mastery of the subject matter. This Article is not one of them, but is instead an encouragement to seek them out. This Article is simply a reminder that the rules have real consequences on the actual field of play and that there are numerous obstacles to overcome before the Albert Pujols zone can be contemplated. This is just a warm-up discussion of some things to think about. In other words, this is batting practice.

I. TAKING AN APPEAL TO THE APPELLATE DIVISION

One rule engrained in our subconscious is the deadline for filing and serving a notice of appeal or motion for leave to appeal. We have thirty days. (8) We are warned to treat this deadline as a statute of limitations. (9)

Confronted with this deadline, many lawyers rush to file a notice of appeal without assessing whether what the judge did was appealable. (10) Is there an appealable paper (an order or judgment), and does it address an appealable subject matter? Many lawyers are unaware of the technicalities. My telephone usually rings after trial or motion counsel has already filed (and hopefully served) a notice of appeal. …

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