Kubiszyn v. Terex Division of Terex Corp.

201 A.D.2d 974, 607 N.Y.S.2d 832

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 4, 1994
• Status: Published

Opinion

Motion for extension of time to file notice of appeal granted, and cross motion for extension of time to file notice of cross appeal denied. Memorandum: Appellant timely served a notice of appeal, but its attempt at filing the notice of appeal was rejected by the County Clerk on the ground that no preargument statement was included with the notice of appeal. The County Clerk erred in rejecting the notice of appeal inasmuch as the filing of a preargument statement is not a jurisdictional prerequisite to taking an appeal (see, CPLR 5513, 5514 [c]), and the penalty for failure to file a preargument statement is left to the discretion of this Court (22 NYCRR 1000.12 [h]). Thus, appellant’s failure to file timely is excusable and the motion to extend the time to take the appeal to December 9,1993 is granted.

Respondent’s time to take a cross appeal expired on December 13, 1993 (see, CPLR 5513 [c]). Because respondent failed to file or serve a notice of cross appeal on or before that date, the motion for an extension of time in which to take a cross appeal is denied (see, CPLR 5514 [c]; 5520 [a]). Present — Pine, J. P., Balio, Lawton, Davis and Boehm, JJ. (Filed Jan. 24, 1994.)