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Docket Number

Nos. 2005-05642, 2005-06382.

Attorney(S)

Galit Schloss, Riverdale, N.Y., appellant pro se. Jones Sledzik Garneau Nardone, LLP, Scarsdale, N.Y. (Stephen J. Jones and Marcy Blake of counsel), respondent pro se. WILLIAM F. MASTRO, J.P., FRED T. SANTUCCI, STEVEN W. FISHER, MARK C. DILLON, JJ.

Judges

William F. Mastro
Mark C. Dillon

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Smart Summary

Case Summary: Jones Sledzik Garneau Nardone, LLP v. Galit Schloss

Factual and Procedural Background

This matter arises from an action to recover legal fees brought by Jones Sledzik Garneau Nardone, LLP (the plaintiff) against Galit Schloss (the defendant/appellant). The defendant appealed from: (1) an order of the Supreme Court, Westchester County (Barone, J.), dated and entered November 15, 2004, which granted the plaintiff's motion for summary judgment, dismissed the defendant's affirmative defenses, and denied the defendant's cross motion to dismiss the complaint; and (2) a judgment of the same court in favor of the plaintiff and against the defendant in the sum of $97,119.17 (the judgment was dated November 15, 2004 and entered November 17, 2004).

Service and notices relevant to the appeals: the plaintiff served the order with notice of entry by overnight mail on November 16, 2004, and served the judgment with notice of entry on November 20, 2004. The defendant filed a notice of appeal on December 21, 2004, identifying the paper appealed as a "Short Form Order ... dated November 5 [sic], 2004." The defendant later filed a second notice of appeal (approximately six months later) from the November 15, 2004 judgment.

Disposition in the appellate court: The Appellate Division ordered that the appeals be dismissed, without costs or disbursements.

Legal Issues Presented

Whether the notices of appeal filed by the defendant were timely under CPLR 5513(a), which requires that an appeal 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."
Whether untimely notices of appeal deprive the appellate court of jurisdiction and therefore require dismissal of the appeals.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Matter of Haverstraw Park v Runcible Props., 33 NY2d 637	That the time period for filing a notice of appeal under CPLR 5513(a) is nonwaivable and is jurisdictional.	The court relied on this authority to support the proposition that the 30‑day filing requirement of CPLR 5513(a) is jurisdictional and cannot be waived.
Matter of Ogborn v Hilts, 262 AD2d 857	That the time period for filing a notice of appeal under CPLR 5513(a) is nonwaivable and is jurisdictional.	The court cited this case together with Haverstraw Park to reinforce the jurisdictional nature of CPLR 5513(a)'s time limit.
People ex rel. McReynolds v Commissioner, Off. of Mental Retardation Dev. Disabilities, 19 AD3d 438	Authority applied in the context of dismissing appeals where statutory timing requirements for appeal were not met.	The court cited this decision as support for dismissing appeals when the appellant fails to comply with CPLR 5513(a).
Matter of Eagle Ins. Co. v Soto, 254 AD2d 483	Authority applied in the context of dismissing appeals for noncompliance with appeal timing rules.	The court cited this decision as additional authority supporting dismissal of untimely appeals.
Deygoo v Eastern Abstract Corp., 204 AD2d 596	Authority applied in the context of dismissing appeals for failure to satisfy jurisdictional timing requirements.	The court cited this decision as further support for the conclusion that untimely notices of appeal require dismissal.

Court's Reasoning and Analysis

The court's analysis is focused and procedural. It proceeded as follows:

The court identified the governing statute: CPLR 5513(a), which requires that an appeal 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.
The court emphasized that the 30‑day time period for filing a notice of appeal is nonwaivable and jurisdictional. It cited Matter of Haverstraw Park v Runcible Props., 33 NY2d 637 and Matter of Ogborn v Hilts, 262 AD2d 857 for that principle.
The court compared the dates of service and the dates on which the appellant filed notices of appeal: the order and judgment were served (with notice of entry) in mid-November 2004; the first notice of appeal was filed on December 21, 2004 (which the court treated as untimely given the applicable 30‑day period), and a second appeal was filed approximately six months later.
Because both notices of appeal were untimely under CPLR 5513(a), the court concluded that the appellant failed to comply with the jurisdictional requirement for taking an appeal.
The court therefore held that the appeals must be dismissed, citing additional authority (People ex rel. McReynolds; Matter of Eagle Ins. Co. v Soto; Deygoo v Eastern Abstract Corp.) that supports dismissal where statutory timing requirements for appeal are not met.

Holding and Implications

APPEALS DISMISSED

Holding: The Appellate Division ordered that the appeals be dismissed, without costs or disbursements.

Implications: The direct consequence is that the defendant's appeals from the November 15, 2004 order and the November 15/November 17, 2004 judgment were dismissed for lack of compliance with the jurisdictional filing requirement of CPLR 5513(a). As a practical result, the judgment in favor of the plaintiff in the sum of $97,119.17 stands. The opinion applies established precedent about the nonwaivable, jurisdictional nature of the CPLR 5513(a) filing period and cites prior decisions supporting dismissal for untimely appeals; the opinion does not announce or discuss any new legal principle beyond applying those authorities to the facts of this case.

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JONES SLEDZIK GARNEAU NARDONE, LLP, Respondent, v. GALIT SCHLOSS, Appellant.

Ordered that the appeals are dismissed, without costs or disbursements.

The order granting summary judgment was dated and entered on November 15, 2004. The judgment, which was also dated November 15, 2004, was entered two days later on November 17, 2004. The plaintiff served the order with notice of entry of the order by overnight mail on November 16, 2004 and served the judgment with notice of entry on November 20, 2004. The defendant filed a notice of appeal on December 21, 2004, specifying the paper being appealed as the "Short Form Order of the Supreme Court, Westchester County, dated November 5 [ sic], 2004." Six months later, the defendant filed a notice of appeal from the November 15, 2004 judgment.

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]). The time period for filing a notice of appeal is nonwaivable and jurisdictional ( see Matter of Haverstraw Park v Runcible Props., 33 NY2d 637; Matter of Ogborn v Hilts, 262 AD2d 857). Both notices of appeal were untimely under CPLR 5513 (a).

Accordingly, the defendant failed to comply with the jurisdictional requirement of CPLR 5513 and the appeals must be dismissed ( see People ex rel. McReynolds v Commissioner, Off. of Mental Retardation Dev. Disabilities, 19 AD3d 438; Matter of Eagle Ins. Co. v Soto, 254 AD2d 483; Deygoo v Eastern Abstract Corp., 204 AD2d 596).

GARNEAU NARDONE v. SCHLOSS