As noted, this time limitation for serving a notice of appeal is a jurisdictional requirement that may not be extended by stipulation of the parties,17 or by the court, except as provided by CPLR 5514(c), which states: “No extension of time shall be granted for taking an appeal or for moving for permission to appeal except as provided in this section [5514(b) - disability of attorney], section 1022 [substitution - extension of time for taking procedural steps] or section 5520 [omissions - appeal by improper method].” The extension of time within which to serve and file the notice of appeal provided by CPLR 5514(b) for “disability of attorney” does not apply to the voluntary discharge of an attorney by the client.18

The time limitation for filing the original notice in the court of original instance is generally not deemed to be jurisdictional, however. The appellant in Kubiszyn v. Terex Div. of Terex Corp.,19 for example, timely served a notice of appeal, but its attempt at filing the notice of appeal was rejected by the county clerk on the ground that no preargument statement was included with the notice of appeal.

The Fourth Department held that “the county clerk erred in rejecting the notice of appeal inasmuch as the filing of a preargument statement is not a jurisdictional prerequisite to taking an appeal (see, CPLR 5513, 5514[c]), and the penalty for failure to file a preargument statement is left to the discretion of this Court (22 NYCRR 1000.12[h]).” Thus, the court granted the appellant’s motion to extend the time to take the appeal.

Take an Appeal

As stated in CPLR 5513(a), the 30-day time limit for serving a notice of appeal is measured from “service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry.” Unless the judgment or order requires service by a particular method to commence the running of the 30-day appeal period, service by the respondent of a copy of the order or judgment by mail, with notice of entry, is adequate to start the time running. If service is made by regular mail, five days are added to the appeal period; one business day is added for service by overnight delivery (see CPLR 2103[b][2] and [6]). CPLR 5513(d) affords the appellant the additional time under CPLR 2103(b) even though the appellant serves the judgment or order, with notice of entry, on the prevailing party.

A party upon whom the adverse party has served a notice of appeal or motion papers on a motion for permission to appeal may take a cross-appeal or make a cross-motion for permission to appeal within 10 days after such service, or within 30 days of the service of the judgment or order, whichever is longer, provided such cross-appeal or cross-motion is otherwise available (CPLR 5513[c]).

When a party seeks to limit his adversary’s time to appeal, it has always been held that there must be strict compliance with the rules of practice. Over a century ago, it was held that the party moving to dismiss an appeal as untimely “must show a strict and technical compliance with the statute on his part.”20 A failure to comply strictly with the rules of practice “may not be overlooked.”21

This continues to be the approach taken by New York appellate courts. Thus, a notice of entry that does not recite the correct entry date is ineffective to trigger the 30-day appeal time.22 But a “mere inaccuracy” in the notice of entry that “violates no rule of practice,” such the failure to include the index number of the case, will not avoid the 30-day appeal period.23

In Norstar Bank of Upstate N.Y. v. Office Control Systems Inc.,24 the Court of Appeals addressed the issue of what constitutes a proper notice of entry. The Court held that service of a cover letter, which stated only that the Appellate Division order was attached and did not specify that it was entered, together with a copy of the Appellate Division order that was stamped entered with the date of entry and the name of the clerk of the court where the order was entered, constituted service of the order with notice of entry so as to commence the running of appellant’s time to move for leave to appeal. Thus, the proposed appellant’s motion for leave to appeal, made more than 35 days after service of the cover letter and the Appellate Division order, was untimely (CPLR 5513[b]; 2103[b][2]).

In Reynolds v. Dustman,25 the Court of Appeals distinguished its prior decision in Norstar in a situation where the cover letter failed to alert the proposed appellant to the enclosure of an appealable paper. The Supreme Court in Reynolds dismissed the petitioner’s CPLR article 78 proceeding petition on the merits in a paper, which, although labeled a “decision,” ended with a sentence stating that “[t]his decision shall constitute the order of the court.”

This paper was neither stamped with a date and place of entry, nor signed by the clerk. On Aug. 8, 2002, the county attorney mailed petitioner a copy of the “decision” with a cover letter stating “[e]nclosed herewith please find the decision filed in the County Clerk’s Office on August 6, 2002″ (emphasis in original). On Feb. 13, 2003, the petitioner filed a notice of appeal, dated Feb. 10, 2003. The Appellate Division dismissed the appeal as untimely, citing Norstar, supra.

The Court of Appeals reversed the order of the Appellate Division, and remitted the case to the Appellate Division to determine the appeal taken to that court.

The Court in Reynolds held that where a cover letter does not alert the proposed appellant to the enclosure of an appealable paper, the respondent cannot rely on notations on the enclosed paper itself as providing essential elements of a notice of entry:

Although the Supreme Court paper respondents served identifies itself as both a decision and order, it can be treated as a judgment determining the proceeding, an appealable paper. Nevertheless, respondents’ cover letter describing the enclosure as a “decision filed” was not notice of entry of a judgment or order. Consequently, the cover letter is insufficient for the notice of entry required by CPLR. In addition, because their cover letter did not alert petitioner to the enclosure of an appealable paper, respondents cannot rely on notations on the enclosed paper itself as providing essential elements of a notice of entry. Moreover, the paper respondents enclosed was neither stamped with the date and place of entry nor signed by the clerk, and therefore did not provide the essential elements of a notice of entry. Thus, petitioner’s time to appeal never commenced running and his appeal was timely taken. 26


As we have observed in prior columns, it is better to let someone else contribute to the body of case law governing the timeliness of appeals; receiving a motion to dismiss your appeal for untimeliness will probably result in many sleepless nights. The frantic search for reasons to oppose this kind of dismissal motion can be easily avoided by serving and filing a notice of appeal early upon receipt of a colorable notice of entry of an appealable paper, without waiting until the 30th day just because the statute grants that much time.

Thomas R. Newman is of counsel to Duane Morris and author of New York Appellate Practice (Matthew Bender). Steven J. Ahmuty Jr. is a partner at Shaub, Ahmuty, Citrin & Spratt. They are both members of the American Academy of Appellate Lawyers.

Endnotes:

1. 55 A.D.3d 662 (2d Dept., 2008). Our thanks to Jonathan Dachs, Esq. for bringing the Dokaj decision to our attention.

2. See CPLR 5513, 5514, 5515 and 5520.

3 . See CPLR 5525-5532.

4. See 22 NYCRR Parts 500 (Court of Appeals), 600 (First Department), 670 (Second Department), 800 (Third Department), and 1000 (Fourth Department).

5. E.g., Ficus Investments Inc. v. Private Capital Management, LLC, A.D.3d, 872 N.Y.S.2d 93, 101 (1st Dept., 2009).

6. Schadoff v. Russ, 278 A.D.2d 222 (2d Dept., 2000).

7. See Parochial Bus Systems v. Board of Educ. of City of New York, 60 N.Y.2d 539, 544-45 (1983).

8. 94 N.Y.2d 891 (2000).

9. E.g., Raymond Corp. v. National Union Fire Insurance Company of Pittsburgh, Pa., 46 A.d.3d 1251, 1252 (3d Dept., 2007).

10. E.g., Savarese v. NYCHA, 172 A.D.2d 506 (2d Dept., 1991).

11. E.g., Nam Tai Electronics Inc. v. UBS Painewebber Inc., 46 A.D.3d 486, 487 (1st Dept., 2007).

12. See Heilbrunn v. Town of Woodstock, 50 A.D.3d 1377, 1378 n.2 (3d Dept., 2008).

13. E.g., MacKenzie v. Bison Elevator Inc., 8 A.D.3d 1062 (4th Dept., 2004).

14. 99 N.Y.2d 637 (2003).

15. 60 N.Y.2d 57, 61 (1983).

16. 57 A.D.3d 975 (2d Dept., 2008).

17. See Haverstraw Park v. Runcible Properties Corp., 33 N.Y.2d 637 (1973).

18. See Siegel v. Obes, 112 A.D.2d 930, 931 (2d Dept., 1985).

19. 201 A.D.2d 974 (4th Dept., 1994).

20. Good v. Daland, 116 NY 153, 156 (1890); Kelly v. Sheehan, 76 NY 325, 326, (1879) (“There being no power in the court to relieve a party who fails to take an appeal in due time, however meritorious his excuse, the party undertaking to limit the time is held to strict practice”).

21. O’Brien v. City of New York, 6 AD2d 63 (1st Dept., 1958).

22. See Nagin v. Long Island Savings Bank, 94 AD2D 710 (2d Dep’t 1983) (to start the time to appeal running, “[t]he notice of entry must correctly state when and where the judgment or decree appealed from was entered.”).

23. Deygoo v. Eastern Abstract Corp., 204 A.D.2d 596 (2d Dept., 1994).

24. 78 N.Y.2d 1110 (1991).

25. 1 N.Y.3d 559 (2003).

26. Id. at 560 (citations omitted).