Timely filing of a notice of appeal is nonwaivable and jurisdictional.1 Appellants do, however, on occasion, timely seek appellate review but erroneously use the incorrect method, i.e., by either using a motion for leave to appeal where an appeal was available as of right (simply filing a notice of appeal) or by taking an appeal as of right where a motion for leave was required. The Legislature is forgiving and grants such appellants a fresh 30-day opportunity to reapply for appellate review by the proper method.
In his Practice Commentaries to CPLR 5514, “C5514:1, Mistaking Method,” David Siegel explains how CPLR 5514(a) saves a party who has mistakenly appealed by way of the wrong method, provided that the original application, albeit wrong, was timely taken:2
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