Messner v. Messner

Sep 18, 1973
Versions:42 A.D.2d 889
347 N.Y.S.2d 589
1973 N.Y. App. Div. LEXIS 3585

Motion by defendant-respondent to dismiss an appeal by plaintiff from an order entered in the Supreme Court, Bronx County, on May 25, 1973, granting defendant’s motion for a protective order pursuant to CPLR 3103, is denied, without costs. A copy df the order appealed from, with notice of entry, was served by mail on June 1,1973. Plaintiff’s notice of appeal was not mailed until July 5, 1973, and was filed on July 6, 1973. Pursuant to CPLR 2103 (siibd. [b], par. 2), service of a copy of the order by mail added three days to the time prescribed by CPLR 5513 for the service of a notice of appeal. (See Sheehan v. Jaffa, 247 App. Div. 835.) Since the 33d day from the date of mailing (General Construction Law, § 20) fell on July 4, a legal holiday, plaintiff was permitted to serve the notice of appeal on the next business day (General Construction Law, § 25-a). Hence, service of the notice of appeal, by mail, on July 5, 1973 was timely. Since service of the notice of appeal was timely, the late filing of the notice can and will be excused by the court. (CPLR 5520, subd. [a]; James Talcott, Inc. v. Schildhaus, 2 A D 2d 669, affd. 2 N Y 2d 910.) The cross motion to stay the trial pending determination of the appeal is denied without costs. Apart from the questionable merit of the appeal, the imminence of the trial, at which all *890issues can be disposed of, makes a stay unwarranted. Concur — Stevens, P. J., Nunez, Lane and Capozzoli, JJ.