Oliver v. Alcog

Nov 15, 1989
Versions:155 A.D.2d 1001
548 N.Y.S.2d 132

— Motion to dismiss appeal denied. Memorandum: We deny the motion of defendant-respondent to dismiss the appeal as untimely. Plaintiff-appellant served and filed his *1002notice of appeal 34 days after he served the order by mail upon defendant-respondent. CPLR 2103 (b) (2) provides: "[Wjhere a period of time prescribed by law is measured from the service of a paper and service is made by mail, five days shall be added to the prescribed period”. The period of time prescribed by law for taking an appeal is measured from the service of a copy of the judgment or order with written notice of entry, whether the service is made by the respondent or by the appellant (see, CPLR 5513 [b]). Although the apparent purpose of CPLR 2103 (b) (2) is to give the person to whom a paper is mailed additional time to respond because of the delay from the time of service by mailing to the time of receipt of the paper, the section, by its clear language, does not preclude plaintiff-appellant, who mailed the order and judgment with notice of entry to his opponent, from taking advantage of the section.

Following the literal and unequivocal language of CPLR 2103 (b) (2), the time prescribed for plaintiff-appellant to take his appeal, 30 days from the date of the service of the order and judgment appealed from with notice of entry, was extended for an additional five days because the service of the order and judgment with notice of entry was by mail. Present —Callahan, J. P., Boomer, Green, Balio and Davis, JJ.