CPLR 5513(b) provides that a motion for leave to appeal must be made within 30 days of “the date of service by a party upon the party seeking permission of a copy of the judgment or order to be appealed from and written notice of its entry.”
To begin the CPLR 5513(b) 30-day clock, service must comply with CPLR 2103, which also permits the chief administrative judge to promulgate rules authorizing electronic service. Pursuant to the Uniform Rules for Trial Courts, in actions subject to electronic filing, parties may serve “notice of entry of any order” by filing a copy of the order with notice of entry on the New York State Courts Electronic Filing (NYSCEF) site.
In Felipe A. Ruisech, et al v. Structure Tone Inc., & c., et al.1 the plaintiffs in a labor law case sought leave to appeal an Appellate Division order that granted partial summary judgment to the defendants to the Court of Appeals. The plaintiffs first unsuccessfully moved in the Appellate Division and then successfully moved directly in the Court of Appeals for leave to appeal. The plaintiffs’ motion to the Court of Appeals was filed 31 days after one of the four defendants, Structure Tone, served the Appellate Division order with notice of entry by filing on the trial court’s electronic docket. The defendants then moved to dismiss the plaintiffs’ appeal as untimely. The issue before the Court of Appeals was whether electronic service of an intermediate appellate court order on the trial court’s docket rather than the appellate court’s docket was sufficient service under CPLR 2103. The court held that service was proper and triggered the CPLR 5513(b) 30-day window to file a motion for leave to appeal.
The Court of Appeals noted that the “relevant rules . . . neither prohibit nor render ineffective service of an intermediate appellate court order with notice of its entry by filing on the trial court’s NYSCEF docket.” The court held that the plaintiffs’ motion for leave to appeal was untimely as to Structure Tone and dismissed the appeal against it. The appeal against the remaining defendants was allowed to proceed because the plaintiffs’ motion was timely made as to the other defendants, who could not rely on Structure Tone’s service to start the CPLR 5513(b) calendar.
This case explains two important issues in appellate practice. First, service on the trial court docket of an appellate court order is effective service. Second, timeliness is evaluated on a party-by-party basis, so each prevailing party should separately, and quickly, serve an order with notice of entry.
If you have any questions regarding the content of this alert, please contact Matthew Larkin, Torts & Products Liability Defense Practice Area chair, at mlarkin@barclaydamon.com; Amanda Miller, counsel, at amiller@barclaydamon.com; or another member of the firm’s Torts & Products Liability Defense Practice Area.
12024 NY Slip Op 05866 (2024).