(Download) "Harold Peck Et Al. v. Ernst Brothers" by Supreme Court of New York # Book PDF Kindle ePub Free
eBook details
- Title: Harold Peck Et Al. v. Ernst Brothers
- Author : Supreme Court of New York
- Release Date : January 07, 1981
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 60 KB
Description
Appeal from an order of the County Court of Saratoga County, entered Septembe 16, 1980, which denied plaintiffs motion for an extension of time to serve a notice of appeal. Plaintiffs entered a default judgment against defendant on May 23, 1978. Defendants motion to vacate was denied and the resultant order was affirmed by this court (Peck v Ernst Bros., 73 A.D.2d 735). On February 15, 1980, defendant again moved to vacate the default judgment on different grounds. The motion was granted. The order was entered and a copy with notice of entry was served on plaintiffs attorney on June 2, 1980. On June 9, 1980, a notice of appeal was filed in the Saratoga County Clerks office. The notice of appeal was not served on the attorney for the defendant until July 8, 1980, 36 days after the entry of the order. A motion was then made to extend the time for service of the notice of appeal (CPLR 5520, subd [a]). County Court denied the motion. We reverse. While there is ordinarily no reason why an attorney should not perform simultaneously the two-step requirement of filing the notice of appeal in the clerks office and mailing a copy to his adversary (CPLR 5515, subd 1), the failure to do one of the requisite two steps need not be fatal. A showing of "mistake or excusable neglect" may excuse lateness of performance of either one of the steps (Messner v Messner, 72 A.D.2d 889). Here, plaintiffs counsel timely filed his notice of appeal but failed to serve the notice because of erroneous [81 A.D.2d 940 Page 941]
 "Harold Peck Et Al. v. Ernst Brothers" by Supreme Court of New York # Book PDF Kindle ePub Free){kind=link}