New York Law Review

Tag: notice of entry

  • Matter of Will of Gershenoff, 28 N.Y.2d 495 (1971): Determining When the Time to Appeal Begins

    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.

  • Manhattan Storage & Warehouse Co. v. Lilly, 299 N.Y. 281 (1949): Calculating Appeal Deadlines Based on Notice of Entry

    299 N.Y. 281 (1949)

    The time limit to take an appeal is 30 days after service upon the appellant of a copy of the judgment or order and written notice of its entry, unless the appellant themselves entered the order or served notice of its entry.

    Summary

    This case clarifies the deadline for filing an appeal under New York law (CPLR 5513[a]). The Court of Appeals held that the 30-day appeal period begins when the appellant is served with both a copy of the order/judgment and written notice of its entry, unless the appellant themselves entered the order or served the notice. In this specific instance, because the appellants did not enter the order and the respondent served the notice of entry, the appellants’ time to appeal ran from the date they received notice of entry.

    Facts

    The specifics of the underlying dispute are not detailed in this decision, as the focus is solely on the procedural issue of the timeliness of the appeal. The key fact is that the appellants sought to appeal an order, but the respondent argued that the appeal was untimely.

    Procedural History

    The case involves a motion to compel the plaintiff to accept service of a notice of appeal. The lower court denied the motion, effectively ruling that the appeal was untimely. This decision was appealed to the Court of Appeals.

    Issue(s)

    Whether the appellants’ time to appeal ran from the date of service of the order with notice of entry upon them, where they did not enter the order and the respondent served the notice of entry.

    Holding

    Yes, because under CPLR 5513(a), the 30-day appeal period begins when the appellant is served with a copy of the order or judgment and written notice of its entry, unless the appellant themselves entered the order or served the notice of its entry.

    Court’s Reasoning

    The Court of Appeals relied on a strict interpretation of CPLR 5513(a), which specifies the time limit for taking an appeal. The statute states that the appeal must be taken within 30 days after service upon the appellant of a copy of the judgment or order “and written notice of its entry.” The single exception is when the appellant themselves entered the judgment or order or served notice of its entry, in which case the appeal is limited to 30 days after “he did either.” The court distinguished this case from People ex rel. Manhattan Stor. & Warehouse Co. v. Lilly, 299 N.Y. 281, where the appellant was treated as having entered the order. Here, the appellants did not enter the order, and the respondent served the notice of entry. Therefore, the court concluded that the appellants’ time to appeal ran from the time they were served with notice of entry. The court explicitly states the relevant rule: “The basic time limit to take an appeal is within 30 days after service upon the appellant of a copy of the judgment or order “and written notice of its entry” (CPLR 5513 [a]). The single exception to the general rule is where the appellant himself ‘ ‘ has entered the judgment or order or served notice of its entry ”, in which event his appeal is limited to 30 days after “ he did either ”.