Zetlin v. Hanson Holdings, Inc.

63 A.D.2d 878, 405 N.Y.S.2d 472, 1978 N.Y. App. Div. LEXIS 11870

Opinion

— Motion by plaintiff-appellant for an enlargement of time within which to perfect this appeal unanimously denied, with $20 costs, and the appeal dismissed on the court’s own motion for failure to prosecute. The appeal is dated January 12, 1977 from an order of Special Term, entered December 20, 1976. Effective April 1, 1976, we adopted rule 22 NYCRR 600.11 (a) (3) fixing an outside limit for perfecting an appeal "within one year of the date of entry of the judgment or order appealed from”, unless the court for good cause permits an exception. This appeal is now five months beyond the one-year rule. Counsel does not indicate merit to the appeal, merely stating that he was waiting for the decision by the court at Special Term with respect to other defendants in a different action based on our decision in Brecher v Gregg (56 AD2d 525). However, the application of that case to this appeal is not explained. Undue delay in the prosecution of an appeal tends to frustrate the rights of a respondent. (Tonkonogy v Jaffin, 21 AD2d 264.) The attention of the Bar is called again to our rule and that undue delay is presumed if the perfecting of the appeal goes beyond one year. Up to the time of the present motion, made some five months after expiration of the time allowed by our rule, appellant did not move to extend his time to perfect the appeal. Exceptions to the rule will be permitted only upon an expeditious and timely application supported by a substantial excuse and a showing of merit to the appeal. Concur — Kupferman, J. P., Silverman, Fein, Sandler and Sullivan, JJ.