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Siegel v. Obes

Appellate Division of the Supreme Court of New York
Second Department

112 A.D.2d 930
(N.Y. App. Div. 1985)

Siegel v. Obes
112 A.D.2d 930

Motion granted and appeal dismissed, without costs or disbursements.

Under CPLR 5513 (a), an appeal as of right must be taken, that is, a notice of appeal must be served and filed (CPLR 5515), within 30 days after service, inter alia, upon the appellant of a copy of the judgment or order appealed from, together with notice of entry. If service is by mail, this time period is extended by five days (CPLR 2103 [b] [2]). Service of a copy of such an order or judgment by mail is adequate for purposes of CPLR 5513 (a), unless the order or judgment specifically requires service by a certain method in order to commence the running of the 30-day period under CPLR 5513 (a) ( see, CPLR 2103; 4A CJS, Appeal Error, § 447; Anthony v. Schofield, 265 App. Div. 423). The requirement of personal service contained in the instant order and judgment relates solely to the enforceability thereof. Thus, service by mail upon appellant's attorney was adequate for the purposes of giving notice under CPLR 5513 (a). In any event, the appellant was personally served by reason of personal service on Obes, who was chairman of the board of directors of the appellant. While the record indicates that he resigned as an officer, there is nothing in the record referring to his resignation as chairman of the board. We note that Obes was served both as an individual and as a corporate representative.

Furthermore, service upon appellant's attorney of record subsequent to the time that appellant allegedly discharged him, but prior to his discharge in the mode prescribed by law, was adequate to fulfill the requirements of CPLR 2103 (b) ( see, Blondell v. Malone, 91 A.D.2d 1201; Hendry v. Hilton, 283 App. Div. 168).

Finally, the extension of time within which to serve and file a notice of appeal provided by CPLR 5514 (b) does not apply to the voluntary discharge of an attorney by his client ( Hendry v Hilton, supra; cf. Blondell v. Malone, supra; Davalos v. Davalos, 283 App. Div. 699, lv denied 283 App. Div. 783).

Appellant having failed to file its notice of appeal within 35 days after service by mail of a copy of the order and judgment, with notice of entry, upon its attorney, this court is without the power to hear its appeal ( cf. Hecht v. City of New York, 60 N.Y.2d 57). Gibbons, J.P., Niehoff, Rubin and Kunzeman, JJ., concur.

The case of Siegel v. Obes is provided as part of a free educational service by J. Douglas Barics, attorney at law, for reference only. Cases such as Siegel v. Obes 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. Siegel v. Obes 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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