_____________

In the Matter

of

the Amendment of the Rules of the Court of Appeals

(22 NYCRR Part 500).

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In pursuance of section 51 of the Judiciary Law, it is hereby

ORDERED, that Part 500 (22 NYCRR Part 500) of the present Rules of the Court of Appeals be and they hereby are amended by deleting the bracketed material and adding the underlined material, effective December 8, 2010, or as soon thereafter as section 52 of the Judiciary Law is complied with, to read as follows:

The present section 500.2 of Part 500 of Title 22 is repealed in its entirety and a new section 500.2 is substituted therefor:

The following sections of part 500 of title 22 are amended as indicated:

500.11 Alternative Procedure for Selected Appeals.

(a) On its own motion, the Court may review selected appeals by an alternative procedure. Such appeals shall be determined on the intermediate appellate court record or appendix and briefs, the writings in the courts below and additional letter submissions on the merits. The clerk of the Court shall notify all parties by letter when an appeal has been selected for review pursuant to this section. Appellant may request such review in its preliminary appeal statement. Respondent may request such 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.

(b) Appeals may be selected for alternative review on the basis of:

(1) questions of discretion, mixed questions of law and fact or affirmed findings of fact, which are subject to a limited scope of review;

(2) recent, controlling precedent;

(3) narrow issues of law not of statewide importance;

(4) nonpreserved issues of law;

(5) a party's request for such review; or

(6) other appropriate factors.

(c) Appellant’s filing. In addition to the submission in digital format required by paragraph (k) of this section, [W]within 25 days after the date of the clerk of the Court's letter initiating the alternative review procedure, appellant shall:

(1) file three copies of the intermediate appellate court record or appendix and three copies of each brief filed by each party in the intermediate appellate court. Original exhibits to be relied upon which are not in the record or appendix at the intermediate appellate court shall be filed or, if they are on file with the clerk of the trial court, subpoenaed to this Court and the Court so advised by letter. Such exhibits shall be clearly identified and, where appropriate, their authenticity shall be certified or stipulated to;

(2) file an original and two copies of a letter stating its arguments in support of appellant’s position on the merits. If appellant objects to review pursuant to this section, the letter shall also explain that position;

(3) include as part of its submission a disclosure statement pursuant to section 500.1(f) of this Part, if necessary;

(4) file proof of service of one copy of its arguments on each other party; and

(5) remit the fee, if any, required by section 500.3(a) of this Part.

(d) Respondent's filing. In addition to the submission in digital format required by paragraph (k) of this section, [W]within 20 days after service of appellant's submission, respondent shall file an original and two copies of a letter stating its arguments in support of its position on the merits. If respondent objects to review pursuant to this section, the letter shall also explain that position. Respondent shall include in its submission a disclosure statement pursuant to section 500.1(f) of this Part, if necessary, and file proof of service of one copy of its arguments on each other party.

(e) Appellant's reply. A reply is not permitted unless authorized by the Court upon request of the appellant, which shall accompany the proposed filing, or on the Court's own motion.

(f) Abandonment of arguments. A party shall be deemed to have abandoned any argument made in the intermediate appellate court briefs not addressed or reserved in the [written] letter submission to this Court.

(g) Review of subject matter jurisdiction. An appeal selected for review pursuant to this section is subject to dismissal on the Court's own motion, should it be determined that the Court is without subject matter jurisdiction.

(h) Related litigation. Where necessary, each letter filing shall indicate the status of any related litigation as of the date of the letter's filing.

(i) Termination of alternative procedure. If the Court terminates its review of the appeal pursuant to this section before disposition, the clerk of the Court will notify counsel by letter and set a schedule for full briefing of the appeal.

(j) Amicus curiae relief. The Attorney General of the State of New York may file, no later than the filing date set for respondent's submission, an original and two copies of an amicus curiae submission without leave of the Court, with proof of service of one copy on each party. Any other proposed amicus curiae shall request amicus curiae relief pursuant to section 500.23(a)(2) of this Part.

500.12 Filing of Record Material and Briefs in Normal Course Appeals.

(a) Scheduling letter. Generally, in an appeal tracked for normal course treatment, the clerk of the Court issues a scheduling letter after the filing of the preliminary appeal statement. A scheduling letter also issues upon the termination of an inquiry pursuant to section 500.10 or 500.11 of this Part. The scheduling letter sets the filing dates for record material and briefs.

(b) Appellant's initial filing. In addition to the submission in digital format required by section 500.14(g) of this Part, [O]on or before the date specified in the scheduling letter, appellant shall serve and file record material in compliance with section 500.14 of this Part, and shall remitm the fee, if any, required by section 500.3(a) of this Part. In addition to the submission in digital format required by paragraph (h) of this section, [A]appellant also shall file an original and [24]19 copies of a brief, with proof of service of three copies on each other party. If no scheduling letter is issued, appellant's papers shall be served and filed within 60 days after appellant took the appeal by (1) filing a notice of appeal in the place and manner required by CPLR 5515, (2) entry of an order granting a motion for leave to appeal in a civil case, or (3) issuance of a certificate granting leave to appeal in a criminal case.

(c) Respondent’s filing. In addition to the submission in digital format required by paragraph (h) of this section and section 500.14(g) of this Part, [O]on or before the date specified in the scheduling letter, respondent shall serve and file an original and [24]19 copies of a brief and an original and 19 copies of a supplementary appendix, if any, with proof of service of three copies on each other party. If no scheduling letter is issued, respondent’s papers shall be filed within 45 days after service of appellant’s brief.

(d) Reply briefs. A reply brief is not required but may be served and filed by appellant on or before the date specified in the scheduling letter. If no scheduling letter is issued, a reply brief may be served and filed within 15 days after service of respondent's brief. Where cross appeals are filed, the cross appellant may serve and file a reply brief to the main appellant’s responsive brief. In addition to the submission in digital format required by paragraph (h) of this section, [A]an original and [24]19 copies of a reply brief shall be served and filed, with proof of service of three copies on each other party.

(e) Amicus curiae briefs. The Attorney General of the State of New York may file, no later than the filing date set for respondent’s brief, and in addition to the submission in digital format required by paragraph (h) of this section, an original and [24]19 copies of an amicus curiae brief without leave of the Court, with proof of service of three copies on each party. Any other proposed amicus curiae shall request amicus curiae relief pursuant to section 500.23(a)(1) of this Part.

(f) Briefs in response to amicus curiae briefs. Briefs in response to an amicus curiae brief are not required but may be served and filed by a party whose position is adverse to that of the amicus curiae. The brief shall be served and filed within 15 days after the date of this Court’s order granting a motion for amicus curiae relief or within 15 days after the service of an amicus curiae brief by the Attorney General of the State of New York. In addition to the submission in digital format required by paragraph (h) of this section, [A]an original and [24]19 copies shall be filed, with proof of service of three copies on each other party and one copy on each amicus curiae.

(g) Sur reply briefs. Sur reply briefs are not permitted.

500.14 Records, Appendices and Exhibits in Normal Course Appeals.

(a) Record material. Appellant shall supply the Court with record material in one of the following ways:

(1) Appellant may subpoena the original file to this Court from the clerk of the court of original instance or other custodian, and submit original exhibits to be relied upon, and, in addition to the submission in digital format required by paragraph (g) of this section, supplement these with an original and [24]19 copies of an appendix conforming to subdivision (b) below, with proof of service of three copies of the appendix on each other party. If appellant is represented by assigned counsel, or has established indigency, an oral or written request may be made of the clerk of this Court to obtain the original file.

(2) In addition to the submission in digital format required by paragraph (g) of this section, [A]appellant may file with the clerk of the Court one copy of the reproduced record used at the court below. This record shall be supplemented by an original and [24]19 copies of an appendix conforming to subdivision (b) below, with proof of service of three copies of the appendix on each other party.

(3) In addition to the submission in digital format required by paragraph (g) of this section, [A]appellant may file with the clerk of the Court an original and [24]19 copies of a new and full record which shall include the record used at the court below, the notice of appeal or order granting leave to appeal to this Court, the decision and order appealed from to this Court, and any other decision and order brought up for review, with proof of service of three copies of the new record on each other party.

(b) Appendix. An appendix shall conform to the requirements of CPLR 5528 and 5529, and shall be sufficient by itself to permit the Court to review the issues raised on appeal without resort to the original file (see subsection [a][1] of this section) or reproduced record used at the court below (see subsection [a][2] of this section). The appendix shall include, as relevant to the appeal, the following:

(1) the notice of appeal or order or certificate granting leave to appeal;

(2) the order, judgment or determination appealed from to this Court;

(3) any order, judgment or determination which is the subject of the order appealed from, or which is otherwise brought up for review;

(4) any decision or opinion relating to the orders set forth in subsections (b)(2) and (3) above; and

(5) the testimony, affidavits, jury charge and written or photographic exhibits useful to the determination of the questions raised on appeal or cited in the brief of the party filing the appendix.

(c) Respondent’s appendix. A respondent’s brief may include a supplementary appendix.

(d) Inadequate appendix. When appellant has filed an inadequate appendix, respondent may move to strike the appendix (see section 500.21 of this Part) or, in addition to the submission in digital format required by paragraph (g) of this section, may submit an original and [24]19 copies of an appendix containing such additional parts of the record as respondent deems necessary to consider the questions involved, with proof of service of three copies of the appendix on each other party. The Court may direct appellant to supplement the appendix with additional parts of the record it deems necessary to consider the questions involved.

(e) Description of action or proceeding. The reproduced record and additional papers or the appendix shall contain the statement required by CPLR 5531.

(f) Correctness of the record. The correctness of the reproduced record or the appendix and additional papers shall be authenticated pursuant to CPLR 2105 or stipulated to pursuant to CPLR 5532.

500.23 Amicus Curiae Relief.

Any nonparty other than the Attorney General seeking to file an amicus brief on an appeal, certified question or motion for leave to appeal must obtain permission by motion.

(a) Motions for amicus curiae relief.

(1) Amicus curiae relief on normal course appeals and normal course certified questions.

(i) Movant shall file an original and one copy of its motion papers, accompanied by an original amicus brief, with proof of service of one copy of the motion and one copy of the brief on each other party.

(ii) If the motion is granted, in addition to the submission in digital format required by section 500.12(h) of this Part, [24]19 copies of the brief shall be filed, with proof of service of three copies on each party, within the time set by the Court's order.

(iii) The motion shall be noticed for a return date no later than the Court session preceding the session in which argument or submission of the appeal or certified question is scheduled. When an appeal or certified question is scheduled for argument or submission during the Court's January or September session, the motion shall be noticed for a return date no later than the first Monday in December or the first Monday in August, respectively.

Potential amici seeking information are encouraged to contact the Clerk's office by telephone during business hours. Information on the calendar status of appeals and certified questions, Court session dates and appropriate return dates for amicus motions also is available on the Court's Internet website.

(2) Amicus curiae relief on appeals and certified questions selected for review by the alternative procedure. Movant shall file an original and one copy of its papers, accompanied by an original and two copies of the proposed submission, with proof of service of one copy on each other party. The motion shall be noticed for a return date no later than the filing date set for respondent's submission on the appeal.

(3) Amicus curiae relief on motions for permission to appeal in civil cases. Movant shall file an original and one copy of its papers, accompanied by an original amicus brief, with proof of service of the motion and one copy of the brief on each other party. The motion shall be noticed for a return date as soon as practicable after the return date of the motion for permission to appeal to which it relates. Movant may expressly request that, if amicus relief is granted on the motion for permission to appeal, and if permission to appeal is granted, leave also be granted for movant to submit an amicus brief on the appeal. Absent such request and the grant of such leave, the granting of a motion to appear amicus curiae on a motion for permission to appeal does not authorize the movant to appear amicus on the subsequent appeal. In such case, a new motion for amicus curiae relief on the appeal must be brought pursuant to subsection (a) (1) or (2) above.

(4) Criteria. Movant shall not present issues not raised before the courts below. A motion for amicus curiae relief shall demonstrate that:

(i) the parties are not capable of a full and adequate presentation and that movants could remedy this deficiency;

(ii) the amicus could identify law or arguments that might otherwise escape the Court's consideration; or

(iii) the proposed amicus curiae brief otherwise would be of assistance to the Court.

(5) Opposing papers. Respondent may file an original and one copy of papers in opposition to the motion, with proof of service of one copy on each other party.

(b) Amicus curiae filings by the Attorney General.

(1) Amicus curiae relief on motions for permission to appeal in civil cases. The Attorney General shall file an original and one copy of the submission with proof of service of one copy on each other party. The submission shall be filed without leave of the Court on or before the return date of the motion for permission to appeal.

(2) Amicus curiae relief on normal course appeals and normal course certified questions. See Rule 500.12(e).

(3) Amicus curiae relief on appeals and certified questions selected for review by the alternative procedure. See Rule 500.11(j).