Coonradt v. Averill Park Central School District

73 A.D.2d 747, 422 N.Y.S.2d 544, 1979 N.Y. App. Div. LEXIS 14825

Opinion

by appellants pursuant to rules of practice, 22 NYCRR 800.12 granted, without costs, and the clerk is directed to file appellants’ record and brief received on August 31, 1979. Cross motion by respondents to dismiss the appeal as untimely taken pursuant to CPLR 5513 (subd [a]) denied, without costs.' According to respondents’ attorney, the order sought to be appealed, together with notice of entry, was served on appellants’ attorney by mail on May 31, 1978. However, the affidavit of service by respondents’ attorney’s employee, submitted in support of the cross motion, is insufficient in that it does not state that the affiant herself mailed the letter enclosing the order, nor does it recite that the letter was mailed to appellants’ attorney at his designated address in the manner specified by CPLR 2103 (subd [b], par 2). Accordingly, respondents have not established that the order was properly served by mail on May 31, 1978 thereby commencing appellants’ time to appeal as of that date (see Anthony v Schoñeld, 265 App Div 423; cf. 14 Second Ave. Realty Corp. v Szalay, 16 AD2d 919). Mahoney, P. J., Greenblott, Sweeney, Kane and Staley, Jr., JJ., concur.