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Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided February 6, 2007.

Sledzik Garneau & Nardone v. Galit Schloss
37 A.D.3d 417, 829 N.Y.S.2d 230 (2007)

Mastro, J.P., Santucci, Fisher and Dillon, JJ., concur.

Ordered that the appeals are dismissed, without costs or disbursements.

The order granting summary judgment was dated and entered on November 15, 2004. The judgment, which was also dated November 15, 2004, was entered two days later on November 17, 2004. The plaintiff served the order with notice of entry of the order by overnight mail on November 16, 2004 and served the judgment with notice of entry on November 20, 2004. The defendant filed a notice of appeal on December 21, 2004, specifying the paper being appealed as the "Short Form Order of the Supreme Court, Westchester County, dated November 5 [sic], 2004." Six months later, the defendant filed a notice of appeal from the November 15, 2004 judgment.

An appeal must be taken "within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry" (CPLR 5513 [a]). The time period for filing a notice of appeal is nonwaivable and jurisdictional (see Matter of Haverstraw Park v Runcible Props., 33 NY2d 637 [1973]; Matter of Ogborn v Hilts, 262 AD2d 857 [1999]). Both notices of appeal were untimely under CPLR 5513 (a).

Accordingly, the defendant failed to comply with the jurisdictional requirement of CPLR 5513 and the appeals must be dismissed (see People ex rel. McReynolds v Commissioner, Off. of Mental Retardation & Dev. Disabilities, 19 AD3d 438 [2005]; Matter of Eagle Ins. Co. v Soto, 254 AD2d 483 [1998]; Deygoo v Eastern Abstract Corp., 204 AD2d 596 [1994]).

The case of Jones Sledzik Garneau & Nardone v. Galit Schloss is provided as part of a free educational service by J. Douglas Barics, attorney at law, for reference only. Cases such as Sledzik v. Schloss may be overruled by subsequent decisions, different judicial departments may have different controlling case law, and the level of the court deciding each case will determine whether it is controlling law or not. Sledzik Garneau & Nardone v. Galit Schloss is presented here to help illustrate how the law works in general, but for specific legal matters, an attorney should be consulted.

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