Maybe the appeal was late, maybe it wasn’t:CPLR 5513

Deutsche Bank Natl. Trust Co. v James, 2018 NY Slip Op 05572 [2d Dept 2018]

Initially, since the record does not reveal when the order and judgment of foreclosure and sale and written notice of its entry was served on the defendant, we reject the plaintiff's contention that the defendant's appeal must be dismissed as untimely taken (see CPLR 5513[a]; Zapata v County of Suffolk, 23 AD3d 553, 554).

CPLR 5513 5701 5526 3212b 5501

CPLR R. 5513 Time to take appeal, cross-appeal or move for permission to appeal

CPLR § 5701 Appeals to appellate division from supreme and county courts

CPLR R. 5526 Content and form of record on appeal

CPLR § 5501 Scope of review

CPLR R. 3212 Motion for summary judgment

Fazio v Costco Wholesale Corp., 2011 NY Slip Op 04740 (App. Div., 1st 2011)

We reject plaintiffs' contention that the appeal is untimely because defendant filed its notice of appeal 32 days after it was served electronically with notice of the entry of the order (see CPLR 5513[a]). A New York State Court Electronic Filing (NYSCEF) site confirmation shows the date on which the order with notice of entry was filed electronically and e-mail notifications were sent to counsel for the parties. However, the NYSCEF site's transmission of notification of the entry to e-mail service addresses "shall not constitute service of notice of entry by any party" (22 NYCRR 202.5b[h][3]). "A party shall serve notice of entry of an order . . . on another party by serving a copy of the notification . . . and an express statement that the transmittal constitutes notice of entry" (id.). The only affidavit of service in the record shows that the notice of entry was served on defendant by mail. Thus, defendant had 35 days to notice its appeal (see CPLR 2103[b][2]).

Gross v 141-30 84th Rd. Apt. Owners Corp., 2011 NY Slip Op 04746 (App. Div., 1st 2011)

Although Supreme Court's order was not appealable as of right because it did not decide a motion made on notice (see CPLR 5701[a][2]), in the interest of judicial economy, we nostra sponte deem the notice of appeal a motion for leave to appeal and grant the motion (see CPLR 5701[c]; Winn v Tvedt, 67 AD3d 569 [2009]).

Supreme Court erred in granting plaintiff's application, since plaintiff failed to show that defendants' noncompliance with the court's discovery orders was "willful, contumacious or due to bad faith" (Weissman v 20 E. 9th St. Corp., 48 AD3d 242, 243 [2008]; Dauria v City of New York, 127 AD2d 459, 460 [1987]). Indeed, the record shows that defendants provided plaintiff with the discovery owed pursuant to Supreme Court's most recent order. Prior to that order, most of the delays in the discovery schedule were due to plaintiff's actions. Where, as here, delays in discovery were caused by both parties' actions, the unilateral and drastic sanction of striking the pleadings is inappropriate (Daimlerchrysler Ins. Co. v Seck, 82 AD3d 581 [2011]; Sifonte v Carol Gardens Hous. Co., 70 AD2d 563, 564 [1979]).

Block 6222 Constr. Corp. v Sobhani, 2011 NY Slip Op 04614 (App. Div., 2nd 2011)

"It is the obligation of the appellant to assemble a proper record on appeal, which must contain all of the relevant papers that were before the Supreme Court" (Wen Zong Yu v Hua Fan, 65 AD3d 1335, 1335; see CPLR 5526; Cohen v Wallace & Minchenberg, 39 AD3d 689; Matter of Remy v Mitchell, 60 AD3d 860). Since, under the circumstances, the record here is inadequate to enable this Court to render an informed decision on the merits, the appeal must be dismissed (see Emco Tech Constr. Corp. v Pilavas, 68 AD3d 918, 918-919; Matter of Allstate Ins. Co. v Vargas, 288 AD2d 309, 310).

Cocom-Tambriz v Surita Demolition Contr., Inc., 2011 NY Slip Op 04622 (App. Div., 2nd 2011)

Moreover, this Court has the authority to search the record and award summary judgment to a nonmoving party with respect to an issue that was the subject of the motion before the Supreme Court (see CPLR 3212[b]; Harsch v City of New York, 78 AD3d 781, 784; Nassau Plaza Assoc., L.P. v Greater N.Y. Mut. Ins. Co., 74 AD3d 1159, 1160). Accordingly, upon searching the record, we award summary judgment to the defendants third-party plaintiffs on the issue of whether the plaintiff sustained a grave injury.

Williams v New York City Health & Hosps. Corp., 2011 NY Slip Op 04662 (App. Div., 2nd 2011)

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

REVERSED: CPLR R. 5513; CPLR R. 5515; CPLR R. 2103; Failure to put the papers in a mailbox in NY = no jurisdiction

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] [2], [f] [1]) 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 [2001], rearg denied 97 NY2d 639) and National Org. for Women v Metropolitan Life Ins. Co. (lv dismissed 70 NY2d 939 [1988], 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[1]). 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][1], [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 [2001]; National Org. for Women v Metropolitan Life Ins. Co., 70
NY2d 939 [1988]). 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 [1981]), 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 [1983]). 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

Continue reading “REVERSED: CPLR R. 5513; CPLR R. 5515; CPLR R. 2103; Failure to put the papers in a mailbox in NY = no jurisdiction”