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