Hart v. Pantilides

Appellate Division of the Supreme Court of New York

Hart v. Pantilides

30 A.D.2d 960, 294 N.Y.S.2d 329, 1968 N.Y. App. Div. LEXIS 3003

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 31, 1968

StatusPublished

This text of 30 A.D.2d 960 (Hart v. Pantilides) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hart v. Pantilides, 30 A.D.2d 960, 294 N.Y.S.2d 329, 1968 N.Y. App. Div. LEXIS 3003 (N.Y. Ct. App. 1968).

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Opinion

Appeal from order entered May 24, 1967, dismissed as untimely, without costs or disbursements. The record in this case is woefully defective. The notice of appeal appearing in the record, which there is every reason to believe is not the notice upon which plaintiff is proceeding, is dated August 31, 1967, and purports to bring up for review an order dated May 24, 1967. Such a notice would be prima facie untimely and is attacked in respondent’s brief. Respondent refers to another notice of appeal which is nearly a year later in date. Appellant has made no response at all to any of respondent’s claims as to the appeal being barred by limitation of time. However, while it appears prima facie that the appeal is untimely (see Matter of Stern Bros. [Livingston], 2 A D 2d 553, 556) we recognize that there may be circumstances under which the appeal would be timely (Matter of Katz, 13 N Y 2d 924; see, also, 7 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 5513.03). No satisfactory determination can be made on this record, lacking as it does any proof as to the entry of the order, the date of the motion for reargument, and any facts as to appellant’s knowledge or ignorance of the entry of the order appealed from. Under these circumstances we feel obliged to proceed in view of the challenge on the limited record, but we would entertain a motion for reargument of this disposition upon a complete record, if appellant is So advised. Concur— Stevens, J. P., Steuer, Capozzoli, Tilzer and McNally, JJ.

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Appeal from order entered May 24, 1967, dismissed as untimely, without costs or disbursements. The record in this case is woefully defective. The notice of appeal appearing in the record, which there is every reason to believe is not the notice upon which plaintiff is proceeding, is dated August 31, 1967, and purports to bring up for review an order dated May 24, 1967. Such a notice would be prima facie untimely and is attacked in respondent’s brief. Respondent refers to another notice of appeal which is nearly a year later in date. Appellant has made no response at all to any of respondent’s claims as to the appeal being barred by limitation of time. However, while it appears prima facie that the appeal is untimely (see Matter of Stern Bros. [Livingston], 2 A D 2d 553, 556) we recognize that there may be circumstances under which the appeal would be timely (Matter of Katz, 13 N Y 2d 924; see, also, 7 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 5513.03). No satisfactory determination can be made on this record, lacking as it does any proof as to the entry of the order, the date of the motion for reargument, and any facts as to appellant’s knowledge or ignorance of the entry of the order appealed from. Under these circumstances we feel obliged to proceed in view of the challenge on the limited record, but we would entertain a motion for reargument of this disposition upon a complete record, if appellant is So advised. Concur— Stevens, J. P., Steuer, Capozzoli, Tilzer and McNally, JJ.

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Bluebook (online)

30 A.D.2d 960, 294 N.Y.S.2d 329, 1968 N.Y. App. Div. LEXIS 3003, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hart-v-pantilides-nyappdiv-1968.