This question arose from a client who would have been a prospective respondent on an appeal which the appellant believed he could take as of right on the basis of a “substantial Constitutional question.” The Court of Appeals disagreed and dismissed the appeal as not fulfilling the requirements of CPLR § 5601(b).
When a party believes erroneously that an appeal as of right lies to the New York State Court of Appeals due to a “substantial Constitutional question” and the Court dismisses their appeal, CPLR § 5514(a) affords the party the ability to move for leave under CPLR § 5513(b) within 30 days of the order of dismissal, unless the Court orders otherwise. CPLR § 5514(c) provides that, except as provided in CPLR § 1022 or CPLR § 5520, there shall be no extension of time.
In such cases CPLR § 5514(a) provides, in pertinent part as follows: “If an appeal is taken or a motion for permission to appeal is made and such appeal is dismissed or motion is denied and, except for time limitations in section 5513, some other method of taking an appeal or of seeking permission to appeal is available, the time limited for such other method shall be computed from the dismissal or denial unless the court to which the appeal is sought to be taken orders otherwise.”
CPLR § 5513(b) allows 30 days for a motion for permission to appeal.
1) Is the time within which such a motion must be timely served measured as 30 days from the date of the order of dismissal as CPLR § 5514(a) would suggest or 30 days from service of the order with Notice of Entry?
2) Would your answer be influenced by the knowledge of the rules of practice in the Court of Appeals, which provide that a motion to reargue the denial of motion for leave to appeal, or to reargue the disposition on an appeal adjudicated on the merits, must be served within 30 days of the order, with no requirement that the order first be served with Notice of Entry?
In the Matter of Park East Corporation v. Whalen (38 N.Y.2d 559, 560 (1976)), the Court of Appeals decreed that the order of dismissal must be served with Notice of Entry to start the 30 days running under CPLR § 5514(a). Moreover, if service of Notice of Entry is not served by hand, then pursuant to CPLR 2103(b), the prospective movant would have 31 days from posting of the Notice of Entry if by overnight delivery, or 35 days from posting if by regular mail, to serve a timely motion for permission to appeal (and possibly more under GCL Sec. 25-a if the last day falls on a Saturday, Sunday or holiday).
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