Court Not Amused by Lawyers’ Appellate Brief

A medical equipment provider sued an insurer to recover assigned first-party no-fault benefits. The insurer appealed from an order denied its cross-motion for summary judgment. The order was essentially affirmed. However the court, on its own motion, ordered the plaintiff’s lawyers to show cause why they should not be sanctioned as a result of the appellate brief they filed. Promed Durable Equipment, Inc v GEICO Insurance, 2013 NY Slip Op 23283 [41 Misc 3d 19]
The brief submitted on plaintiff’s behalf contained, among other things, pages denominated “Table of Authorities” and “Summary of the Argument” that merely state that these pages were “left blank intentionally.” The “Question Presented” stated only “WHAT’S A BOY TO DO?” The remainder of the brief did not address the facts of this case or interpose any specific argument as to why the order from which defendant appealed should be affirmed.

In New York, as in most states, an appellate brief shall include an appellate argument. Sanctions and costs may be imposed against an attorney or party to the litigation, or both, for engaging in frivolous conduct. Rule  3.3(f)(2) of the Rules of Professional Conduct provides that “[i]n appearing as a lawyer before a tribunal, a lawyer shall not … engage in undignified or discourteous conduct.” In addition, rule 5.1 of the Rules of Professional Conduct governs the responsibilities of law firms, partners, managers and supervisory lawyers.

Based upon the above, and other statements in the respondent’s brief, the court ordered the lawyers to show cause why the lawyers should not be sanctioned for submitting the “What’s a boy to do” brief.







About Kelsey J. Brudvig
Senior Shareholder

Kelsey Brudvig is a Shareholder practicing in the areas of retail & hospitality law and professional liability. She defends national and regional leaders in the retail, hospitality, and entertainment sectors doing business in South Carolina in claims involving premises liability, loss prevention, food adulteration, third party torts, and alcohol liability. Kelsey can be reached directly at