Thomas R. Newman
An appeal is “taken” by “serving on the adverse party a notice of appeal and filing it in the office where the judgment or order of the court of original instance is entered.” CPLR 5515. An appeal must be taken “within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry.” CPLR 5513[a].
Unless the judgment or order requires service by a particular method to commence the running of the 30-day appeal period, service by the prevailing party of a copy of the judgment or order, with notice of entry, will trigger the time to appeal. If service is made by regular mail, five days are added to the appeal period; one business day is added for service by overnight delivery. See CPLR 2103[b] and . CPLR 5513(d) affords the appellant the additional time under CPLR 2103(b) even though the appellant itself serves the judgment or order, with notice of entry, on the prevailing party.
With regard to the notice of appeal, timeliness is the overriding concern. Under CPLR 5520(c), mistakes in form or content may be (and generally are) excused unless their forgiveness would prejudice another party’s substantive rights. Protective as the courts are with regard to a party’s right to appeal, however, an untimely notice of appeal is fatal. “The time period for filing a notice of appeal is nonwaivable and jurisdictional.” See Jones Sledzik Garneau & Nardone v. Schloss, 37 A.D.3d 417 (2d Dept. 2007). This time period may not be extended by stipulation of the parties (see Haverstraw Park, Inc. v. Runcible Properties Corp., 33 N.Y.2d 637 (1973)), or by the court, except on the extremely limited grounds enumerated in CPLR 5514(c).
Electronic Notice of Entry
The advent of electronic filing of court papers in the New York State Courts Electronic Filing (NYSCEF) system creates a potential pitfall in taking a timely appeal. Specifically, electronically filing a copy of a judgment or order and written notice of its entry on the NYSCEF site constitutes service thereof by the filer, which then starts the 30-day time period within which to take an appeal by serving a notice of appeal. No other method of service of the notice of entry is necessary to trigger the 30-day appeal time.
In an action subject to e-filing, the County Clerk enters judgments and orders by electronically filing them on the NYSCEF site. See 22 N.Y.C.R.R. 202.5-b[h]. Upon the entry of a judgment or order in this manner, the NYSCEF site transmits a notification of receipt of such entry to the parties’ e-mail service addresses, but this does not constitute service of a notice of entry by any party. See id. at 202.5-b[h]. Instead, pursuant to CPLR 5513(a), a party must serve a copy of the order of judgment with notice of entry. In e-filed cases, this may be accomplished by electronically filing a copy of the judgment or order and written notice of its entry on the NYSCEF site, which constitutes service thereof and triggers the 30-day appeal time.
The pertinent provision is found at 22 N.Y.C.R.R. 202.5-b(h)(2) (emphasis added):
A party shall serve notice of entry of an order or judgment on another party by serving a copy of the judgment or order and written notice of its entry. A party may serve such documents electronically by filing them with the NYSCEF site and thus causing transmission by the site of notification of receipt of the documents, which shall constitute service thereof by the filer.
Alternatively, a party in an e-filed case may serve a notice of entry by any method set forth in CPLR 2103(b)(1-6). Typically, this entails service by regular mail, which enlarges the 30-day appeal time by adding five extra days for a total of 35 days. Uploading a previously mail-served notice of entry to the NYSCEF site does not constitute additional service thereof. See 22 N.Y.C.R.R. 202.5-b[h].
Avgush v. Jerry Fontan, 167 A.D.3d 484 (1st Dept. Dec. 13, 2018), illustrates the potential pitfalls associated with electronic service of a notice of entry. There, the defendants electronically served the order on appeal with notice of entry on Aug. 30, 2016 via the NYSCEF system. The plaintiff was therefore required to file a notice of appeal by Sept. 29, 2016. Since the plaintiff neither served nor filed a notice of appeal by that deadline, his appeal was untimely. The First Department accordingly dismissed the appeal as untimely, noting that “it does not matter that plaintiff served and filed his notice of appeal just one day late.”
As we have observed in prior columns, it is better to let someone else contribute to the body of case law governing the timeliness of appeals; receiving a motion to dismiss your appeal for untimeliness will probably result in many sleepless nights. This can be easily avoided by serving and filing a notice of appeal early upon receipt of a colorable notice of entry of an appealable paper, without waiting until the 30th or 35th day just because the relevant statutes allot that much time.
Scope of Review
Once an appeal has been timely taken, an appellate court’s scope of review is limited to those parts of the judgment or order that have been appealed and that aggrieve the appealing party. See CPLR 5501[a]; 5511; see also Hain v. Jamison, 28 N.Y.3d 524, 534 n.3 (2016), citing Hecht v. City of New York, 60 N.Y.2d 57 (1983). A recent Court of Appeals decision illustrates the potential adverse consequences of limiting a notice of appeal or motion for permission to appeal to only part of the judgment or order that is the subject of the appeal.
In Arrowhead Capital Fin., Ltd. v. Cheyne Specialty Fin. Fund L.P., 154 A.D.3d 523 (1st Dept., 2017), the Appellate Division affirmed a judgment of the Supreme Court that dismissed the complaint without prejudice as against defendant Cheyne Specialty Finance Fund L.P. (Cheyne LP) on the ground that plaintiff’s (Arrowhead’s) counsel did not maintain a physical office in New York in violation of Judiciary Law §470, such that the commencement of the action was a nullity and the “subsequent retention of co-counsel with an in-state office did not cure the violation.” Id. at 523. The Appellate Division also affirmed the dismissal of the complaint with prejudice as against defendant Cheyne Specialty Finance Fund General Partner (Cheyne GP) on the ground that “the complaint contain[ed] no factual allegations of wrongdoing against GP.” Id. at 524.
Arrowhead sought “permission to appeal *** to the extent that the Appellate Division failed to reverse and remand the Order and Judgment of the Supreme Court dismissing [its] Complaint as a nullity for [the] purported failure of plaintiff’s attorney to satisfy the office requirement of Judiciary Law §470 and rejecting cure thereof” (emphasis added). The issue was similarly limited in the papers accompanying Arrowhead’s motion for leave to appeal.
The Court of Appeals granted leave and reversed the Appellate Division’s order, insofar as appealed from, holding that the failure to comply with the “New York office” requirement in violation of Judiciary Law §470 at the time a complaint was filed did not render that filing a nullity and, therefore, dismissal of the action was not required. See Arrowhead Capital Fin., Ltd. v Cheyne Specialty Fin. Fund L.P., ___ N.Y.3d ___, 2019 WL 609480 (Feb. 13, 2019).
Despite the limitation in its leave application, Arrowhead’s brief in the Court of Appeals also challenged the dismissal of the complaint with prejudice as against Cheyne GP. The Court granted the defendants’ motion to strike that portion of Arrowhead’s brief, noting that a specific limitation of the issues to be raised in a motion for leave to appeal is binding on the appellant and precludes consideration of additional issues on appeal:
“Ordinarily when the court grants a motion for leave to appeal all issues of which the court may take cognizance may be addressed by the parties” (Quain v Buzzetta Constr. Corp., 69 NY2d 376, 380, 507 N.E.2d 294, 514 N.Y.S.2d 701 ). However, where “the party seeking leave specifically limits the issues to be raised, it is bound thereby and may not thereafter raise other questions” because “[t]o permit otherwise necessarily disadvantages the opposing parties, who might have joined issue or even cross-moved for leave to appeal as to additional issues had adequate notice been given” (id.). Having limited the issue to be raised in its notice of motion for leave to appeal, Arrowhead may not now challenge the dismissal of claims as against Cheyne GP.
Self-limiting language in a notice of appeal or motion for leave should be avoided. If a judgment or order is wholly adverse to the appellant, then the safest course of action is to appeal “from each and every part” of such judgment or order “as well as the whole thereof” in the notice of appeal or leave application. Alternatively, if a judgment or order is only partially adverse to the appellant, then the notice of appeal or leave application should state that the appeal is taken “from each and every part of the [judgment or order] by which the appellant is aggrieved” or words to that effect. The appellant can then limit the issues raised in its opening appellant’s brief, if so advised.
Thomas R. Newman is of counsel to Duane Morris and author of “New York Appellate Practice” (Matthew Bender). Steven J. Ahmuty Jr. is a partner at Shaub, Ahmuty, Citrin & Spratt. They are members of the American Academy of Appellate Lawyers.
Reprinted with permission from New York Law Journal, © ALM Media Properties LLC. All rights reserved.