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Articles: Appeals and Appellate Litigation

Curing Errors made in Taking the Appeal under CPLR 5520

By J. Douglas Barics
Revised August 2019

When an appeal is taken, there are three possible types of errors that can occur; there can be an error of omission. The appeal might be taken using the wrong method, or there may be a defect in the form in the papers used to take the appeal. CPLR 5520 and corresponding case law allows for many errors to be cured, provided the error does not deprive the Appellate Division of jurisdiction.

1. Omissions when the Appeal is taken: CPLR 5520(a)

If an appeal is taken, but a step is omitted, CPLR 5520(a) authorizes the court a remedy to cure the omission. It provides that if an appellate timely serves or files a notice of appeal or notice of motion for leave to appeal, but omits to take another required act to take the appeal, an extension of time may be granted at the court's discretion.

The failure to serve a notice of appeal is not fatal to the jurisdictional requirements under CPLR 5515, provided the notice of appeal is sufficient and is timely filed. In Dalton v City of Saratoga Springs 2004 NY Slip Op 08293 [12 AD3d 899] (3rd Dept. 2004), the Appellant timely filed the notice of appeal in the lower court, but failed to serve a copy on the adverse party. The Third Department found this to be harmless error since there was no prejudice to the opposing party, and exercised its discretion to cure this defect under CPLR 5520(a). This same issue was addressed by The Court of Appeals in M Entertainment, Inc. v Leydier 13 NY3d 827 (Court of Appeals, 2009). In this case, the Court held that the filing of a Notice of Appeal in the county clerk's office was sufficient to preserve the Appellate Division's authority to exercise discretion under CPLR 5520(c).

Omitting to annex any additional papers as required under 22 NYCRR 1250 is also curable under CPLR 5520(c). In Kubiszyn v. Terex Div. of Terex Corp., 201 A.D.2d 974, (4th Dept.,1994), the appellant timely served a notice of appeal but omitted a preargument statement as required under the old 22 NYCRR 1000 prior to September 2018 (it was replaced with the information statement provided by 22 NYCRR 1250), and the notice of appeal was rejected by the clerk. The appellate division held that jurisdiction was established by the serving of the notice of appeal, and directed the clerk to accept the filing. The defect was not jurisdictional, and any penalty for failing to attach the preargument statement would be resolved by the court.

2. Filing by an improper method: CPLR 5520(b)

There are two ways to take an appeal; when an appeal may be taken as of right, a notice of appeal is proper. When no appeal lies as of right, a motion seeking leave to appeal is required. When the wrong method is used, CPLR 5520(b) and case law allows this defect to be cured.

a. Motion for Leave instead of Notice of Appeal

Using the wrong method to appeal can be cured, but there are traps for the unwary which can result in the appeal being dismissed.

(i) Leave to Appeal Granted

If an appeal as of right exists, the proper method for taking an appeal is the filing of a notice of appeal. If a motion seeking permission to appeal this order is mistakenly used there are two possible outcomes, the motion may be granted, or the motion seeking leave may be denied.

When an order granting permission leave to appeal is granted, the appeal will not be dismissed under CPLR 5520(b), even though a notice of appeal should have been used to take the appeal.

(ii) Leave to Appeal Denied

But if a motion seeking permission to appeal was denied, and there is a right to appeal that order using a notice of appeal, CPLR 5514(a) authorizes the appellant additional time to file a notice of appeal beyond the normal 30 days. It provides an additional 30 days from the date of the order dismissing or denying the appeal. It does not provide that the 30 days starts to run from service of the order, but from the date of the order itself.

The Court of Appeals addressed this issue in Park East Corp. v. Whalen 38 N.Y.2d 559 (1976), which held the 30 days to take the appeal by the correct method applies from the date of service of the order, not the date of the order. However, this holding has not been applied consistently, and appeals have been dismissed. See Retamozzo v. Quinones, 95 A.D.3d 652, (1 Dept.,2012).

b. Notice of Appeal instead of Leave for Appeal

If a notice of appeal is used instead of a motion for leave to appeal, the court will either dismiss the appeal or at its discretion, may treat the notice as a request for leave to appeal.

For example, in Cuda v Cuda 19 A.D.3d 1114 (2005), Matter of Elacqua v. EE. 203 A.D.2d 688 (3rd Dept. 1994) and Loy v. Loy, 108 A.D.3d 1201, (4th Dept.,2013) the Appellate Division used its discretion to treat a notice of appeal as a motion for leave to appeal and granted the motion. Such discretion is by no means guaranteed, in Matter of Tina X. v John X. 2015 NY Slip Op 08876 (3rd Dept. 2015), the Appellate Division declined to treat a notice of appeal as a motion for permission to appeal.

3. Defects in form in the Notice of Appeal: CPLR 5520(c)

a. Minor errors that do not affect the Appellate Court's jurisdiction may be disregarded under CPLR 5520(c).

If an otherwise correct notice of appeal contains the wrong entry date, the Appellate Division has the discretion to treat the appeal as correctly taken. See In the Matter of Nicole J.R. v Jason M.R., 2011 NY Slip Op 01201 [81 AD3d 1450] (4th Dept. 2011), Matter of Ayen v Sain, 2011 NY Slip Op 08006, (4th Dept. 2011).

b. Jurisdictional Defects cannot be cured by CPLR 5520.

When errors affect the appellate court's jurisdiction, they cannot be cured. If an appeal is taken past the deadline set forth in CPLR 5513, the appeal must be dismissed. For example, in Siegel v. Obes, 112 A.D.2d 930 (2nd Dept. 1985) a notice of appeal that was filed beyond thirty fives days deprived the Appellate Court of any jurisdiction to hear the appeal, and it was dismissed due to lack of authority to issue any remedy.

If the notice of appeal contains an inadequate description of the order being appealed, that too deprives the Appellate Division of jurisdiction which prevents it from utilizing CPLR 5520 to cure the defect. In Jones Sledzik Garneau & Nardone, LLP v. Schloss. 37 A.D.3d 417 (2nd Dept. 2007), the appellant managed to have two fatal defects. The appellant in that case filed a notice of appeal which did not sufficiently identify the order being appealed. Six months later, the appellant filed a notice of appeal that contained the missing information. The Appellate Division dismissed the appeal; the first notice of appeal lacked sufficient notice as to what was being appealed, and the second notice of appeal was outside the timeframe set forth in CPLR 5513.

4. Conclusion

Defects that affect jurisdiction are an untimely taking of the appeal or insufficiently identifying the order being appealed. These defects are uncurable, as they deprive the court of all authority including the power to cure defects. Other defects may be cured at the court's discretion, as non jurisdiction defects grant the Appellate Division the authority to cure errors or omissions under CPLR 5520 as a matter of equity.

About J. Douglas Barics
J. Douglas Barics is an appeals attorney located in Commack NY who regularly represents individuals in appellate litigation.

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