Tuesday, April 8, 2014

An untimely appeal.

Practice point:  Defendants' appeal from the motion court's order was untimely since their notice of appeal was filed months after the order was served on them with notice of entry, pursuant to CPLR 5513. Plaintiffs properly served notice of entry upon defendants' former counsel, who was then counsel of record, and counsel, in turn, served defendants with a copy of the order with notice of entry, and filed proof of service, in compliance with the motion court's order.

 Student note:  Defendants' denials of receipt of the certified mail packages, which were returned marked "Refused," is insufficient to rebut the showing of service.

Case: Campion A. Platt Architect, P.C. v. Lenz, NY Slip Op 02332 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: Allegations of improper increased mortgage payments.