Biton v. Baxter Healthcare Corp.

Appellate Division of the Supreme Court of New York

Biton v. Baxter Healthcare Corp.

99 A.D.3d 425, 951 N.Y.2d 392

Appellate Division of the Supreme Court of the State of New York·Decided October 2, 2012·Published

Opinion

[426]*426Having served the orders and notice of entry upon defendants by mail on October 27, 2011, plaintiff had until December 1, 2011 to file a notice of appeal, i.e., 35 days later (CPLR 5513 [a], [d]). Since she did not file a notice of appeal until December 7, 2011, the appeal must be dismissed (see Retta v 160 Water St. Assoc., L.P., 94 AD3d 623 [1st Dept 2012]). In addition, the order entered October 25, 2011 is not appealable as of right under CPLR 5701 (a) because it did not resolve a motion made upon notice (see Kalyanaram v New York Inst. of Tech., 91 AD3d 532 [1st Dept 2012]).

Were we to reach the merits, we would find that plaintiffs motion to restore was properly denied. After a delay of nearly 11 years, plaintiff failed to identify the allegedly “newly discovered” evidence upon which her motion was based.

We find that an injunction is warranted, in view of plaintiffs demonstrated proclivity for frivolous litigation and the vexatious nature of this litigation, as demonstrated by plaintiffs own submissions. Concur — Friedman, J.P., Acosta, Renwick, Richter and Abdus-Salaam, JJ.

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[426]*426Having served the orders and notice of entry upon defendants by mail on October 27, 2011, plaintiff had until December 1, 2011 to file a notice of appeal, i.e., 35 days later (CPLR 5513 [a], [d]). Since she did not file a notice of appeal until December 7, 2011, the appeal must be dismissed (see Retta v 160 Water St. Assoc., L.P., 94 AD3d 623 [1st Dept 2012]). In addition, the order entered October 25, 2011 is not appealable as of right under CPLR 5701 (a) because it did not resolve a motion made upon notice (see Kalyanaram v New York Inst. of Tech., 91 AD3d 532 [1st Dept 2012]).

Were we to reach the merits, we would find that plaintiffs motion to restore was properly denied. After a delay of nearly 11 years, plaintiff failed to identify the allegedly “newly discovered” evidence upon which her motion was based.

We find that an injunction is warranted, in view of plaintiffs demonstrated proclivity for frivolous litigation and the vexatious nature of this litigation, as demonstrated by plaintiffs own submissions. Concur — Friedman, J.P., Acosta, Renwick, Richter and Abdus-Salaam, JJ.

Biton v. Baxter Healthcare Corp., 99 A.D.3d 425, 951 N.Y.2d 392 (N.Y. Ct. App. 2012).

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Opinion

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