Matter of Will of Gershenoff, 28 N.Y.2d 495 (1971)
When a party submits a proposed judgment that requires a request for entry, the time to appeal does not begin until service of the judgment with notice of entry, even if the proposed judgment was initially submitted by the appealing party.
Summary
This case addresses the timeliness of an appeal under CPLR 5513(a). The appellant submitted a proposed counter-judgment, which the court signed. However, the respondents requested and filed the judgment with the County Clerk. The appellant served a notice of appeal more than 30 days after the judgment was filed, but within 30 days of being served with notice of entry. The Court of Appeals held that because the judgment required a specific request for entry, the appellant’s time to appeal did not begin until they were served with a copy of the judgment and notice of entry, thus the appeal was timely.
Facts
In an Article 78 proceeding, Special Term directed that an “order be settled.” The respondents submitted a proposed judgment, and the appellant submitted a proposed counter-judgment. The Special Term Judge signed the appellant’s proposed counter-judgment on May 29, 1968. On June 13, 1968, the respondents filed the signed judgment in the County Clerk’s office at their own request. On July 17, 1968, the appellant was served by mail with a copy of the judgment with notice of entry. The appellant served a notice of appeal to the Appellate Division on the same date.
Procedural History
The respondents moved to dismiss the appeal, arguing that the appellant’s time to appeal expired 30 days after the judgment was filed. The Appellate Division granted the motion to dismiss the appeal, concluding that it was untimely. The appellant appealed to the New York Court of Appeals by leave of the court.
Issue(s)
Whether the appellant’s time to appeal began when the respondents filed the appellant’s proposed counter-judgment, or when the appellant was served with a copy of the judgment and notice of entry.
Holding
No, because the judgment required a specific request for entry; the appellant’s time to appeal did not begin until service of the judgment with notice of entry.
Court’s Reasoning
The Court of Appeals considered CPLR 5513(a), which states that an appeal must be taken within thirty days after service of the judgment or order appealed from with written notice of its entry, “except that when the appellant has entered the judgment or order or served notice of its entry his appeal must be taken within thirty days after he did either.” The court distinguished this case from prior cases, like People ex rel. Manhattan Stor. & Warehouse Co. v. Lilly, where the entry of a counter-order submitted by the appellant was attributed to the appellant because the order was “automatically” entered without any further action. The court reasoned that in this case, the proposed judgment required one of the parties to request that it be entered. Therefore, the court held that because the respondent requested the judgment be entered, the appellant’s time to appeal did not begin until service of the judgment with notice of entry had been made. The court emphasized the importance of determining the specific procedure followed in the county where the determination was rendered, given the lack of uniformity in the entry of judicial decrees.