Tuesday, June 7, 2011

Is Electronic Filing Of Notice Of Entry Sufficient To Start Clock For Appeal?

In Fazio v. Costco Wholesale, the plaintiffs claimed that the defendant's appeal was untimely because defendant filed its Notice of Appeal 32 days after it was served electronically with Notice of the Entry.  The First Department held that electronic filing did not satisfy the requirement of notice by a party.  According to the court, "New York State Court Electronic Filing (NYSCEF) site confirmation shows the date on which the order with notice of entry was filed electronically and e-mail notifications were sent to counsel for the parties. However, the NYSCEF site's transmission of notification of the entry to e-mail service addresses 'shall not constitute service of notice of entry by any party' (22 NYCRR 202.5b[h][3]). 'A party shall serve notice of entry of an order . . . on another party by serving a copy of the notification . . . and an express statement that the transmittal constitutes notice of entry' (id.). The only affidavit of service in the record shows that the notice of entry was served on defendant by mail. Thus, defendant had 35 days to notice its appeal (see CPLR 2103[b][2])."

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