From at least 1858 (Dobess Realty v. City of New York, 79 A.D.2d 348, 352 (1st Dep’t 1981)) to Jan. 1, 1997, case law held that “CPLR 5513(a) limited the time to appeal by requiring that an appeal as of right ‘be taken within thirty days after service upon the appellant of a copy of the judgment or order appealed from and written notice of its entry.’” Williams v. Forbes, 157 A.D.2d 837, 838 (2d Dep’t 1990). Although then “CPLR 5513 did not explicitly designate the person who must serve the order or judgment being appealed from for purposes of commencing the 30-day limitation period running” in cases involving multiple parties (Williams, at 838-39), “5513 was construed to require each prevailing party to separately serve an order with notice of entry to commence the running of time within which the appeal limitations period became effective for each.” Blank v. Schafrann, 206 A.D.2d 771, 773 (3d Dep’t 1994); Williams, at 838-39.
In 1996, CPLR 5513(a) was amended, (L.1996, c. 214, §1), effective Jan. 1, 1997, to provide: “An appeal as of right 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 … .” The statute still does not identify who needs to effect service in instances involving multiple parties—must it still be the prevailing party or is service by any party sufficient as long as the respondent has been properly made aware? While many post-amendment cases track the language in §5513 that a “notice of appeal must be filed and served within 30 days after service by a party of the order and written notice of entry,” diligent research revealed no direct post-amendment case law on this specific point.
Statutes Regulating the Right to Appeal Are Strictly Construed
Statutes which regulate the right to appeal are traditionally accorded a strict construction (Austin & Co. v. H.D. Reichert Const., 151 A.D.2d 851, 852 (3d Dep’t 1989); Reynolds v. Dustman, 1 N.Y.3d 559, 560 (2003)), so as not to deprive a defeated party of his right to appeal. In re Downey’s Will, 275 A.D. 1008, 1008 (3d Dep’t 1949); see also Livingston v. New York El. R. Co., 15 NYS 191, 192 (NY Gen. Term 1891). The party seeking to limit the time of another to take an appeal must be held strictly to the rules of practice; failure to comply therewith may not be overlooked. Nagin v. Long Is. Sav. Bank, 94 A.D.2d 710 (2d Dep’t 1983), lv. Den. 63 N.Y.2d 603 (1984).
Pre-Amendment Case Law Involving Multiple Parties
Williams, above, held that since Williams never served a copy of the order with notice of entry upon Forbes prior to Forbes’ filing his notice of appeal, Forbes’s appeal was therefore timely. Service of the order upon Forbes by another defendant was not effective to commence the running of the 30-day limitation clock.
The plaintiff, in Maddox v. City of New York, 104 A.D.2d 430 (2d Dep’t 1984), moved to dismiss the appeal by the City of New York for untimeliness. As in Farrell v. Stafford Mach., 205 A.D.2d 951 (3d Dep't 1994), below, another defendant had served the order with notice of entry upon all of the parties, including the City. Plaintiffs, however, failed to serve the appellant-City. The City served and filed a notice of appeal more than 35 days after the codefendant had served a copy of the order. Here, too, “the plaintiff’s motion to dismiss the City’s appeal was denied pursuant to the principle, developed in case law, that a party who is moving to dismiss an adversary’s appeal as untimely must have served upon that appellant a copy of the order or judgment appealed from, together with notice of its entry, in order to start the 30-day limitations period running.”
Farrell similarly rejected the contention of an untimely appeal where the judgment had been served on the defendants by plaintiffs’ attorneys, rather than by the attorneys for defendant-SMX for which reason the service was not effective to commence the running of the time within which to take an appeal.
In O’Brien v. City of New York, 6 A.D.2d 63 (1st Dep’t 1958), judgment was entered, on Jan. 17, 1956, in favor of the plaintiff and dismissing the cross-complaint of defendant-appellant City of New York against defendant-respondent WFE. On Jan. 26, 1956, the plaintiff served a copy of the judgment with notice of entry upon the City. WFE, however, failed to serve the City. On Feb. 7, 1958, the City served a notice of appeal from that portion of the judgment dismissing its cross-complaint against WFE.
WFE moved to dismiss the City’s appeal on the grounds of untimeliness because the service of the notice of entry of judgment made by the plaintiff started running the statutory limitation of time in the Civil Practice Act 612 against NYC’s right to appeal “within thirty days after service upon the attorney for the appellant of a copy of the judgment or order appealed from and a written notice of the entry thereof …” (emphasis added). The Appellate Division held that “WFE may not avail himself of the judgment and notice of entry served by the plaintiff.”
O’Brien further underscored that when a defendant seeks to appeal against a codefendant, “said defendant’s time to appeal does not start to run until 30 days after service upon him of notice of entry of the judgment by the prevailing codefendant.”
The First Department also opined that since the City had already been served by the plaintiff it is “illogical to require, for appeal purposes, a notice of judgment to be served upon a party twice, merely because his appeal is against a codefendent.” The court concluded that, the absence of logic notwithstanding, correction rests exclusively with the Legislature.
Mancini v. Mormile, 229 A.D.2d 542 (2d Dep’t 1996), arose from the Family Court. Then Family Court Act §1113 provided that an appeal “must be taken no later than thirty days after the service upon the appellant of any order from which the appeal is taken” (emphasis provided).
The Second Department analogized Family Court Act (FCA) §1113 with the other civil cases ruling that “although the statute does not so state, the long-standing rule applied with respect to FCA §1113 and other similarly-worded statutes is that in order to start the limitation period running, service of the order from which the appeal is taken must be made by the prevailing party.”