Legal Question in Business Law in New York

Rule 5524. Entry of order; remittitur and further proceedings.

Entry of order in appellate court. An order of a court to which an appeal is taken shall be entered in the office of the clerk of that court.

Remittitur and further proceedings. A copy of the order of the court to which an appeal is taken determining the appeal, together with the record on appeal, shall be remitted to the clerk of the court of original instance except that where further proceedings are ordered in another court, they shall be remitted to the clerk of such court. The entry of such copy shall be authority for any further proceedings. Any judgment directed by the order shall be entered by the clerk of the court to which remission is made.

QUESTIONS

A/ Does the appeal court on its own initiative remit the order to trial court ?

Or

Does the plaintiff's attorney takes steps / formalities to remit the order to trial court ?

( In other words, whether Plaintiff's attorney can make an entry of order at trial court )

B/ Once remitted will the trial court on its own initiative fix an active calendar ?

Or

Does the plaintiff's attorney take steps to request trial court to fix the calendar ?

C/ Defendant has filed a review at appellate court and appeal at the NY court of appeals.

But does that stop the trial court to proceed on fixing an active calendar ?

D/ After the defendant has taken part in the trial court, appellate court, NY court of appeals can he them file for forum non conveniens ?

If the FNC has been filed by the defendant, he or she has agreed to venue and jurisdiction of the action against him.

The possible issue could be that the forum is not convenient for witnesses, but is that applicable here ?

Will the court issue sanctions upon our request to defeat frivolous FNC motions and award us amount of attorneys fees that we incurred in fighting the motions ?


Asked on 4/30/13, 3:11 pm

1 Answer from Attorneys
Kevin Connolly Kevin J. Connolly

The appeals court sends the order to the lower court.

What the trial court does pending receipt of the mandate depends on many, many factors.

A motion to change venue on FNC grounds must be made rather early in the case. If the contract has a forum selection clause, the party is stuck with it. But there are sometimes jurisdictional issues that can quack like change of venue.

IF the motions are frivolous, the court can award fees, but don't hold your breath waiting.

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Answered on 5/08/13, 5:55 pm


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