Opinion
No. 208 SSM 31.
Decided October 27, 2009.
APPEAL from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered May 28, 2009. The Appellate Division, with two Justices dissenting, (1) affirmed a judgment of the Supreme Court, New York County (Karen S. Smith, J.), to the extent it had dismissed the complaint as against defendants Wardrop and Thompson; (2) dismissed the appeal from the judgment to the extent that it had dismissed the complaint as against defendant Leydier; (3) dismissed, as subsumed in the appeal from the judgment, the appeal from an amended order of that court, entered after a nonjury trial, which had directed entry of a judgment dismissing the complaint; and (4) dismissed the appeal from the amended order with respect to plaintiffs' claims against defendant Leydier for failure to obtain appellate jurisdiction.
M Entertainment, Inc. v Leydier, 62 AD3d 627, reversed.
Bienstock Michael, P.C., New York City ( Randall S.D. Jacobs of counsel), for appellants.
Satterlee Stephens Burke Burke LLP New York City ( Christopher R. Belmonte of counsel), for respondent.
Before: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur
OPINION OF THE COURT
The order of the Appellate Division should be reversed, with costs, and the matter remitted to that Court for further proceedings in accordance with this memorandum.
The Appellate Division erred in concluding that plaintiffs' noncompliance with the requirement that mail service be accomplished by mailing "within the state" ( see CPLR 2103 [b] [2]; [f] [1]) constituted a "fatal jurisdictional defect" requiring the dismissal of plaintiffs' appeal against Lawrence Leydier. CPLR 5520 (a) provides:
"If an appellant either serves or files a timely notice of appeal or notice of motion for permission to appeal, but neglects through mistake or excusable neglect to do another required act within the time limited, the court from or to which the appeal is taken or the court of original instance may grant an extension of time for curing the omission."
Plaintiffs here timely filed their notice of appeal with the New York County Clerk's office, thus authorizing the Appellate Division to determine whether to exercise its discretion pursuant to CPLR 5520 (a). By contrast, the movants in Cipriani v Green ( 96 NY2d 821, rearg denied 97 NY2d 639) and National Org. for Women v Metropolitan Life Ins. Co. ( 70 NY2d 939, rearg denied 71 NY2d 890) not only failed to timely serve their notices of motion for leave to appeal, but they also failed to timely file those papers with this Court. Thus, in those cases, the Court could not invoke its discretionary authority under CPLR 5520 (a).
In memorandum.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order reversed, etc.