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FamilyAttorney
FamilyAttorney, Lawyer
Category: Landlord-Tenant
Satisfied Customers: 923
Experience:  Owner, attorney in private practice, appellate attorney, GAL & former trial lawyer, licensed for 37 years
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I am in a and prolonged L&T holdover case in which at one

Customer Question

I am in a long and prolonged L&T holdover case in which at one point I filed a appeal with the lower court and made OSC to stay pleadings on an interlocutory order. The OSC requesting a stay on the pleadings from the appellate term was not granted and the proceedings went forth in the lower court. Later I got a letter from the appellate term stating my appeal was dismissed as I did not file the appellate brief, only the OSC seeking the stay.
Question, I am planning potentially to appeal the case which is still ongoing and there have been subsequent D&O's since that interlocutory order that I filed for an appeal but did not submit a brief on because the appellate term would not afford me a stay...
Because the appellate term dismissed the case for failure to file briefs does that preclude me from appealing the whole case inclusive of the interlocutory order, and before?
My dealings with lower courts is that if the court dismisses a case without stating "with prejudice" the case can be be reinstated but I am not sure about the appellate term in NY 2nd department.
One picture is that I can only appeal from that point on (after the interlocutory order), and the other is that I can appeal the whole case...but I am not sure.
Submitted: 1 year ago.
Category: Landlord-Tenant
Expert:  CalAttorney2 replied 1 year ago.

Dear Customer,

Please keep in mind, the specific orders that you have in front of you must be read and understood in full (the specifics and the details are critical!).

But in general, your understanding is correct. The appellate court most likely dismissed your writ only. The dismissal of the writ will only apply to that process, it does not apply to later filings.

If you were to file an appeal following the final entry of judgment in the lower court, that would be decided on the merits of that appeal.

Customer: replied 1 year ago.

Please explain "writ only"

here is a link to see the letter I recieved:

https://drive.google.com/file/d/0B8bYgTo7VtpETVhDWm11a21ld2M/view?usp=sharing

Expert:  CalAttorney2 replied 1 year ago.

Dear Customer,

This is a "general information" forum, I cannot provide you with formal legal advice or legal guidance (so I cannot review and interpret your specific order - trying to interpret a single document out of context could give you the wrong answer, and be of detriment to you).

What I mean by "writ only" is my reference to your appeal asking for the stay on the pleadings (an appeal as to only a part of the lower court proceeding that is filed prior to the entry of a final determination is commonly referred to as a "writ").

Customer: replied 1 year ago.

Ok so then please explain what "22 NYCrr 730 et seq" means in light of what you stated.

Expert:  CalAttorney2 replied 1 year ago.

Dear Customer,

I am going to "opt out" and allow another expert to follow up with you.

Please do not post any further at this time as it will delay the next expert's ability to follow up.

If you need any assistance in the meantime, please contact our customer service at: http://ww2.justanswer.com/help

Thank you for using our forum, and I do wish you the best of luck.

Bill

Expert:  FamilyAttorney replied 1 year ago.

Hello, I am an appellate attorney in NY. Please understand that there is no attorney client relationship by my answering this question. I am answering from the information you have listed and I don't know if there other other facts and circumstances so the answer will have to be a general one. When you see this please let me know so that I can continue and give you some information that could help you with your case. Do you have an attorney for an appeal or will you be pro se?