In re the Estate of Kaufman

Appellate Division of the Supreme Court of New York

In re the Estate of Kaufman

66 A.D.2d 688, 411 N.Y.S.2d 22, 1978 N.Y. App. Div. LEXIS 13965

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

DecidedDecember 12, 1978

StatusPublished

Cited by2 cases

This text of 66 A.D.2d 688 (In re the Estate of Kaufman) 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

In re the Estate of Kaufman, 66 A.D.2d 688, 411 N.Y.S.2d 22, 1978 N.Y. App. Div. LEXIS 13965 (N.Y. Ct. App. 1978).

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Opinion

Motion to dismiss appeal from order, Surrogate’s Court, Bronx County, entered March 31, 1978, denying a motion by objectant-appellant pursuant to CPLR 5019 (subd [a]), on the ground that the order denied reargument, denied without costs and without prejudice to renewal upon the argument of the appeal. Cross motion to dismiss as untimely taken the appeal from the same order denied, without costs. Movant, in quoting from Johnson v Anderson (15 NY2d 925), implies that appellant procured entry of the order and that, therefore, his time to appeal runs from that date. The nettlesome problems created by the exception in former CPLR 5513 (subd [a]) for situations where appellant had procured entry of the order (see, e.g., Matter of Stuart & Stuart v New York State Liq. Auth., 23 NY2d 493, 495-496) were long ago settled by the amendment to that subdivision by the Laws of 1970 (ch 108, § 1, eff Sept. 1, 1970). As a result, the time to appeal is no longer measured from the mere entry but from the date of service by or upon the appellant of a copy of the order with notice of entry. (See Sixteenth Annual Report of NY Judicial Conference, 1975, pp 27-28; 7 Weinstein-Korn-Miller, NY Civ Prac, par 5513.03.) In the case at bar, the earliest service of a copy of the order with notice of entry was made by appellant simultaneously with his service of the notice of appeal therefrom. Accordingly, the appeal was timely taken. Concur—Kupferman, J. P., Birns, Silverman, Fein and Sandler, JJ.

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Motion to dismiss appeal from order, Surrogate’s Court, Bronx County, entered March 31, 1978, denying a motion by objectant-appellant pursuant to CPLR 5019 (subd [a]), on the ground that the order denied reargument, denied without costs and without prejudice to renewal upon the argument of the appeal. Cross motion to dismiss as untimely taken the appeal from the same order denied, without costs. Movant, in quoting from Johnson v Anderson (15 NY2d 925), implies that appellant procured entry of the order and that, therefore, his time to appeal runs from that date. The nettlesome problems created by the exception in former CPLR 5513 (subd [a]) for situations where appellant had procured entry of the order (see, e.g., Matter of Stuart & Stuart v New York State Liq. Auth., 23 NY2d 493, 495-496) were long ago settled by the amendment to that subdivision by the Laws of 1970 (ch 108, § 1, eff Sept. 1, 1970). As a result, the time to appeal is no longer measured from the mere entry but from the date of service by or upon the appellant of a copy of the order with notice of entry. (See Sixteenth Annual Report of NY Judicial Conference, 1975, pp 27-28; 7 Weinstein-Korn-Miller, NY Civ Prac, par 5513.03.) In the case at bar, the earliest service of a copy of the order with notice of entry was made by appellant simultaneously with his service of the notice of appeal therefrom. Accordingly, the appeal was timely taken. Concur—Kupferman, J. P., Birns, Silverman, Fein and Sandler, JJ.

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Bluebook (online)

66 A.D.2d 688, 411 N.Y.S.2d 22, 1978 N.Y. App. Div. LEXIS 13965, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-kaufman-nyappdiv-1978.

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