Don Dokaj v. Ruxton Tower Limited Partnership

Summary

The Appellate Division, Second Department, dismissed the plaintiffs' appeal from an order denying leave to file a note of issue because the appeal was untimely. The court held that service of motion papers containing a stamped copy of the entered order and an attorney affirmation referring to it triggered the 30-day period for taking an appeal under CPLR 5513(a).

Holdings

1. Service by the appellants of motion papers that included a copy of the order appealed from stamped with the date of entry and an attorney affirmation referring to that order was sufficient to trigger the 30-day period for taking an appeal under CPLR 5513(a).
2. The appeal was untimely because the triggering papers were served on January 6, 2006, and the notice of appeal was not filed until no earlier than January 22, 2008.

Questions Presented

1. Whether service of motion papers containing a copy of the entered order and an attorney affirmation referring to that order triggered the 30-day period for taking an appeal under CPLR 5513(a).
2. Whether the appeal was timely when the triggering papers were served on January 6, 2006, but the notice of appeal was filed no earlier than January 22, 2008.

Disposition

dismissed