Park East Corp. v. Whalen

345 N.E.2d 289, 38 N.Y.2d 559, 381 N.Y.S.2d 819, 1976 N.Y. LEXIS 2266

• Court: New York Court of Appeals
• Decided: January 15, 1976
• Status: Published

Opinion

Memorandum. Appellant filed a notice of appeal, as of right, 36 days after the date of the denial by the Appellate Division of leave to appeal but within 30 days after service of a copy of the order denying leave with written notice of entry.

Literally and out of context, CPLR 5514 (subd [a]) seems to require computation of the time to take an alternative method of appeal to begin on the date of the denial or dismissal of the first attempted appeal. However, we interpret CPLR 5514 (subd [a]) similarly to the provision for all other appeal time limitations, so as to require computation of the time allowed to begin upon service of a copy of the order terminating the first attempted appeal with written notice of its entry. Such interpretation evidently conforms to the intention of the Legislature and harmonizes this statue’s requirements with those of CPLR 5513 where service of a copy of the order with written notice of entry was deliberately adopted upon the recommendation of the Judicial Conference CPLR Advisory Committee (see McKinney’s Cons Laws of NY, Book 7B, CPLR 5513, Supplementary Practice Commentary for 1970 by Donald Zimmerman, Pocket Part [1975-1976], at pp 248-249). Moreover, this achieves a uniform rule governing commencement of time requirements affecting appeals and it eliminates unnecessary procedural traps for the unwary while simultaneously insuring notification of termination of the first appeal attempt (contra, Dayon v Downe Communications, 42 AD2d 889).

Thus, we deny the motion to dismiss the appeal for untimeliness. Furthermore, the order appealed from is final and reviewable.

Motion to dismiss appeal denied in a memorandum.