The Appellate Division, First Department was reversed by the Court of Appeals. Norman Olch posted about it on his blog, Full Court Pass. Here is the decision. M Entertainment, Inc. v Leydier, 2009 NY Slip Op 07671 (Ct. App. 2009)
The order of the Appellate Division should be reversed, with costs,
and the matter remitted to that court for further proceedings in
accordance with this memorandum.
The Appellate Division erred in concluding that plaintiffs' non-compliance with [*2]the requirement that mail service be accomplished by mailing "within the state" (see
CPLR 2103 [b] , [f] ) constituted a "fatal jurisdictional defect"
requiring the dismissal of plaintiffs' appeal against Lawrence Leydier.
CPLR 5520(a) provides:
"If an appellant either serves or files a timely
notice of appeal or notice of motion for permission to appeal, but
neglects through mistake or excusable neglect to do another required
act within the time limited, the court from or to which the appeal is
taken or the court of original instance may grant an extension of time
for curing the omission."
Plaintiffs here timely filed
their notice of appeal with the New York County Clerk's office, thus
authorizing the Appellate Division to determine whether to exercise its
discretion pursuant to CPLR 5520(a). By contrast, the movants in Cipriani v Green (lv dismissed 96 NY2d 821 , rearg denied 97 NY2d 639) and National Org. for Women v Metropolitan Life Ins. Co. (lv dismissed 70 NY2d 939 , rearg denied
71 NY2d 890) not only failed to timely serve their notices of motion
for leave to appeal, but they also failed to timely file those papers
with this Court. Thus, in those cases, the Court could not invoke its
discretionary authority under CPLR 5520(a).
CPLR R. 5513 Time to take appeal, cross-appeal or move for permission to appeal
CPLR R. 5515 Taking an appeal; notice of appeal
CPLR R. 2103 Service of papers
M Entertainment, Inc. v Leydier, 2009 NY Slip Op 04169 (App. Div., 1st, 2009)
An appeal as of right must be taken within 30 days after service by a
party upon the appellant of a copy of the judgment or order appealed
from, with notice of entry (CPLR 5513[a]). An appellant takes such an
appeal by serving upon adverse parties a notice of appeal, and filing
same with the clerk of the court in which the judgment or order has
been entered (CPLR 5515). Where applicable, CPLR 2103(b)(2) provides
for service of papers upon an attorney by mailing to the address
designated for that purpose. "Mailing," under the statute, requires the
deposit of those papers "in a post office or official depository under
the exclusive care and custody of the United States Postal Service within the state
(CPLR 2103[f], [emphasis added]). It is undisputed that plaintiffs,
who opted for service by mail, did not place the notice of appeal to be
served upon Leydier in a post office or depository within this State.
Accordingly, the notice of appeal is of no effect with respect to
Leydier because service was not completed within the meaning of CPLR
2103 (see Cipriani v Green, 96 NY2d 821 ; National Org. for Women v Metropolitan Life Ins. Co., 70
NY2d 939 ). We note that the Third Department has excused late
service of a notice of appeal upon a showing of mistake or excusable
neglect (Peck v Ernst Bros., 81 AD2d 940 ), but the Court of Appeals has [*2]categorically held that the power of an appellate court to review a judgment is subject to an appeal being timely taken" (Hecht v City of New York, 60
NY2d 57, 61 ). We thus find plaintiffs' improper service of their
notice of appeal upon Leydier to be a fatal jurisdictional defect.
The dissent makes an excellent point.
Leydier's sole objection to the service of the notice of appeal is that
it was deposited in the wrong mailbox, i.e., one located in the State
of New Jersey rather than New York. While, historically, the point of
mailing has been a requirement for the completion of service of papers
upon an attorney, it has not been accorded the universal jurisdictional
significance Leydier and the majority ascribe to it.
I'm putting the entire dissent in after the break. It would take too much space otherwise.
The bold is mine
TOM, J.P. (dissenting in part)
The majority deprives plaintiffs of the opportunity to appeal as of
right the dismissal of their claims against defendant Leydier without
engaging in any analysis of the law and equities. Moreover, the cases
relied upon in support of dismissal offer no guidance on the
jurisdictional issue the majority resolves against plaintiffs.
It is Leydier's position that because a notice of appeal is
deposited into a mailbox located outside, rather than within New York
State, this Court is jurisdictionally barred from entertaining that
party's appeal as of right against the recipient of the notice. The two
cases he relies upon to support this result state, in the entirety and
in virtually identical language:
"Motion for leave to appeal dismissed as untimely.
Service was not completed within the meaning of CPLR 2103(b)(2) by the
mailing in Washington, D.C. The statute provides for mailing 'within
the state'" (National Org. for Women v Metropolitan Life Ins. Co., 70 NY2d 939 ; see also Cipriani v Green, 96 NY2d 821  [Nevada mailing]).
of these rulings suggests that the basis for the Court's disposition is
jurisdictional. Both cases involve whether to grant permission to
appeal, an application addressed to the Court's [*3]discretion (see Matter of Newman v Gordon, 31 NY2d 676 ; American Banana Co. v Venezolana Internacional de Aviacion S.A. [VIASA],
69 AD2d 762 ), and reflect no more than the Court of Appeals'
disinclination to excuse a procedural irregularity in the exercise of a
discretionary function (CPLR 2001; see e.g. Matter of Ancona,
17 AD3d 584  [pro hac vice]). The decisions do not state, as
Leydier urges, that the movant's deviation from the manner of service
prescribed by statute defeats the Court's appellate jurisdiction.
Generally, the failure to comply with a provision for service of
papers can be disregarded in the absence of substantial prejudice to
the right of a party (see e.g. Matter of Brown v Casier, 95 AD2d
574, 577  [failure to serve petition 20 days before return
date]). Significantly, Leydier identifies no prejudice incurred by him
as a result of the disputed irregularity in service and concedes that
he timely received plaintiffs' notice of appeal, which was duly filed
within the time prescribed by statute (CPLR 5515). Thus, there is no
question that the appeal was seasonably brought, thereby removing any
question of a jurisdictional bar on the ground of untimeliness (CPLR
5513[a]; see Hecht v City of New York, 60 NY2d 57, 61 ).
Leydier's sole objection to the service of the notice of appeal
is that it was deposited in the wrong mailbox, i.e., one located in the
State of New Jersey rather than New York. While, historically, the
point of mailing has been a requirement for the completion of service
of papers upon an attorney, it has not been accorded the universal
jurisdictional significance Leydier and the majority ascribe to it.
Rule 20 of the Rules of Civil Practice (the predecessor to CPLR
2103[b] and [f]) provided that service could be made on an
"through the post-office, by depositing the paper
properly inclosed in a postpaid wrapper in a post-office or in any
post-office box regularly maintained by the government of the United
States in the city, village or town of the party or the attorney
serving it, directed to the person to be served at the address within
the state theretofore designated by him for that purpose."
requirement for depositing papers "in the city, village or town of the
party or the attorney serving it" has been liberalized to provide for
deposit "in a post office or official depository under the exclusive
care and custody of the United States Postal Service within the state"
(CPLR 2103[f]). Furthermore, mailing is no longer the only means of
delivering papers to an attorney; CPLR 2103 now permits papers to be
sent by the alternative means of "facsimile transmission," "overnight
delivery service" and "electronic means" (CPLR 2103[b], , ).
Under the statute, an overnight delivery service is one "which
regularly accepts items for overnight delivery to any address in the
state" (CPLR 2103[b]). By contrast with service effected by
utilizing the United States Postal Service to make delivery, no
restriction is imposed on the location from which service by overnight
delivery originates, which can be made from anywhere on earth so long
as the papers are deposited "into the custody of the overnight delivery
service for overnight delivery, prior to the latest time designated by
the overnight delivery service for overnight delivery" (id.).
Thus, such service can be effected from across the country or even
around the world, as long as the delivery service customarily effects
overnight delivery to any address within New York State and the papers
are received by the chosen delivery service by the designated time.
Likewise, there is no geographic constraint on the service of papers by
facsimile transmission (CPLR 2103[b]).
The lack of any restriction under CPLR 2103(b)(6) on the location where "deposit . . . [*4]into
the custody of the overnight delivery service" must be made strongly
suggests that the location from which service is initiated is not
intended to be a jurisdictional requirement. Case law bears this out.
As stated in Vita v Heller (97 AD2d 464, 464 ),
"Service of papers by mail is deemed complete upon
deposit of such papers in the mail and such manner of service creates a
presumption of proper mailing to the addressee. The burden then falls
upon the addressee to present evidence sufficient to overcome the
presumption and establish nonreceipt." (Internal citations omitted.)
The rationale behind the presumption is that "the failure of the mails is not to be ascribed to the parties" (Seifert v Caverly, 63 Hun 604, 606 ). Service is "complete" (CPLR 2103[b]) even if the papers are not received in a timely fashion (see Matter of Coppola v Motor Veh. Acc. Indem. Corp., 59 AD2d 1023, 1024 ) or not received at all (see Engel v Lichterman,
62 NY2d 943 ). Thus, what is forfeited by a party failing to
effect service in accordance with the statute is the "presumption of
proper mailing to the addressee" (Vita, 97 AD2d at 464; see Ortega v Trefz, 44 AD3d 916,
917  ["A properly executed affidavit of service raises a
presumption that proper mailing occurred"]), requiring the party to
establish actual receipt of the papers. Since Leydier concedes timely
receipt of the notice of appeal, plaintiffs are relieved of this
Even if it were granted, for the sake of argument, that strict
compliance with CPLR 2103(b)(2) is required, it would be appropriate to
exercise this Court's discretion to excuse plaintiffs' failure to
comply with the in-state restriction on mailing. As to matters not
clearly jurisdictional, CPLR 2001 reflects the intent to avoid
elevating form over substance by incorporating the essence of Civil
Practice Act § 105 "to the end that slight mistakes or irregularities
not affecting the merits or the substantial right of a party shall not
become fatal in
their consequences" (Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2001, at 626, quoting People ex rel. Di Leo v Edwards, 247 App Div 331, 334 ).
In sum, there is no question that the appeal from so much of the
order as granted dismissal of the complaint to Leydier was timely
brought. Neither has any prejudice been demonstrated by Leydier, who
concededly received the notice of appeal in timely fashion, thereby
obviating any factual question concerning actual delivery. Under these
circumstances, plaintiffs should not be deprived of the right to appeal
from the dismissal of the complaint as against him.
Accordingly, I would affirm the order in all respects.