New Guidelines for Emergent Applications in the Appellate Division

In a Notice to the Bar issued today, which is available here, Judge Messano announced new guidelines for emergent applications in the Appellate Division.  Those guidelines will take effect on September 14, 2015.  There will also be a revised Application for Permission to File Emergent Motion, which is the document that is used to initiate the emergent motion process.

Unlike many rules or guidelines, these new guidelines are in narrative form.  The narrative focuses on four broad subjects:  “What matters are emergent,” “Deciding the application,” “Self-created emergencies,” and “Legal effect of granting permission to file.”

Under the heading of what matters are emergent, the new guidelines state that “[a] matter is not emergent just because something will occur before the court could normally decide an ordinary motion” (emphasis in original).  As examples, the guidelines compare a situation where divorced parents have “a dispute over ordinary child visitation on an upcoming weekend” (not emergent, since “the trial court can order that a lost visitation opportunity be made up at a later time”) with one in which a party is ordered to turn over privileged information (emergent, “because the privilege will be destroyed as soon as the documents are disclosed”).

Most emergent motions will, or will not, be accepted for filing without reference to the merits of the application.  But in the case of emergent applications on the eve of or during trial, which are “uniquely disruptive and burdensome to both the adversary and to the trial court,” and which typically involve interlocutory review of a trial court order and must therefore satisfy the standards for leave to appeal, the guidelines state that an application will not be granted unless the movant “can make at least a prima facie showing that the proposed motion would satisfy the standards for granting leave to appeal.”  The guidelines provide an express exception, however, for orders that would require an attorney to appear for trial in two different counties at the same time.

“Self-generated emergencies,” which result from a party who had ample time to act waiting until the last minute and then crying “emergency,” have always been viewed with disfavor in the context of emergent applications.  The new guidelines echo that approach.  “An applicant who claims to have an emergency must behave as though the matter is genuinely emergent” (emphasis in original).  However, as the guidelines conclude at the end of a lengthy discussion, “the court will not mechanically refuse to hear an application solely because it is submitted late, but will do what is just and consistent with fairness and common sense.”

Finally, acceptance of an emergent application for filing does not mean that a stay is in effect.  In an appropriate case of immediate and severe harm, the Appellate Division may enter a stay “to preserve the status quo for a day or two” while the court considers the issues.  But the court will only rarely enter a stay without having heard from the opposing side, and “[l]itigants who delay filing their applications should not expect to thereby ‘rush’ the court into giving them an immediate stay without hearing from the other side.”

These guidelines should be readily at hand for anyone who is involved with emergent matters in the Appellate Division.  Much of what appears in the guidelines is not really new, but the guidelines are an important reference going forward.