The Notice of Entry and Notice of Appeal, Routine Documents with Outsized Pitfalls.

As an experienced appellate attorney, I have seen firsthand the critical role that the Notice of Appeal and Notice of Entry play in the appellate process. These seemingly mundane documents can make or break a case, determining whether a party can present their arguments on appeal or if they are without recourse. Whether you are a potential appellant or respondent, understanding the nuances of Notices of Entry and Notices of Appeal is crucial to ensuring the client’s rights are protected, and the case has the best chance of success.

An experienced litigator realized he saw served with an Order with Notice of Entry about six weeks ago, but he did not file a Notice of Appeal. He knew the rule: a Notice of Appeal must be served and filed within 30 days of the service of the Order with Notice of Entry. Hoping there was something he could do, he reached out to appellate counsel to see if he could save his appeal.  Appellate counsel was able to give this litigator some good news. The adversary’s rush to get a Notice of Entry served and start the litigator’s time to file a Notice of Appeal ultimately saved the appeal. The adversary served the Order with Notice of Entry as soon as the court sent a copy of the order to the parties.  However, the clerk did not enter the order on the docket until the next day.  Thus, the adversary’s Notice of Entry was a nullity because it used the date the judge signed the order instead of the date the clerk entered it. Not only did the litigator not miss the time to file a Notice of Appeal, but his time to file a Notice of Appeal had not even started running.  The litigator’s client’s rights were intact, and the appeal would continue.

That litigator’s experience highlights that while the Notice of Entry and Notice of Appeal are documents constantly filed and served without much thought, the slightest mistake can have significant consequences. The Notice of Appeal must be filed within thirty days of service of the subject order with Notice of Entry (CPLR 5513[a]). A timely filed Notice of Appeal is a nonwaivable jurisdictional prerequisite to taking an appeal (see Avgush v Jerry Fontan, Inc., 167 AD3d 484 [1st Dept 2007]).  At first glance, the best practice is simple: file the Notice of Appeal within 30 days of receiving the Notice of Entry.  However, those who know the details of the process can not only avoid harsh consequences but also use the process to secure a tactical advantage.

Every litigator has seen the standard Notice of Entry. It usually looks like a motion or other pleading. There is a caption and index number on the top, and its body contains one or two sentences advising the date the clerk entered the enclosed order on a specific date. A litigator may think that if they have not received a document that looks like the typical Notice of Entry, their time to file a Notice of Appeal has not begun.  That may not be correct. The error lies in the common belief that a Notice of Entry can only be the standard form. In fact, a Notice of Entry can take any form as long as the document refers to the appealable papers and the date and place of its entry (see Reynolds v Dustman, 1 NY3d 559 [2003]). For example, a cover letter stating that an order is enclosed that is accompanied by a copy of the order with the clerk’s entry stamp constitutes a valid Notice of Entry. It starts the clock for filing a Notice of Appeal (see Norstar Bank of Upstate N.Y. v Office Control Systems, Inc., 78 NY2d 1110 [1991]). 78 NY2d 1110 [1991]).

Any document that references the order at issue and attaches the order can constitute a Notice of Entry. For example, in Dokay v Ruxton Tower Ltd. Partnership (55 AD3d 662 [2d Dept 2008]), the defendant did not serve the plaintiff with a document denominated a “Notice of Entry.” However, in a motion, the defendant’s attorney’s affirmation referenced the order the plaintiff wished to appeal, and a copy of the order with the clerk’s entry stamp was attached as an exhibit.  The plaintiff filed a Notice of Appeal presumably under the belief that the defendant did not serve a Notice of Entry and that the plaintiff’s time to file a Notice of Appeal did not expire.  As it turned out, the plaintiff was incorrect. The Appellate Division found that the defendant’s motion was a Notice of Entry, and the court dismissed the plaintiff’s appeal as untimely (see also, Mokay v Mokay, 111 AD3d 1175 [3d Dept 2013]; Peralta v City of New York, 92 AD3d 554 [1st Dept 2012]). 92 AD3d 554 [1st Dept 2012]).

A clever litigant, or even an unaware litigant, can subtly start the clock to file a Notice of Appeal so that their adversary is unaware that the time to file a Notice of Appeal is running. On the other hand, a simple mistake can give an adversary nearly unlimited time to take an appeal. If there is even one mistaken piece of information in a Notice of Entry, it is defective and does not start the time for an adversary to take an appeal. For example, listing the incorrect entry date in the Notice of Entry rendered the Notice of Entry a nullity (Baranello v Westchester Square Med. Ctr., 282 AD2d 259 [1st Dept 2001]). Incorrectly classifying the paper issued by the trial court can also result in the Notice of Entry being deemed a nullity. In Reynolds, the respondent’s attorney sent a letter advising that he was enclosing a “decision” filed in the County Clerk’s office.  The attorney enclosed an unstamped copy of a decision and order with the letter. The Appellate Division dismissed the appeal as untimely. The Court of Appeals reversed and held that the letter referencing a “decision,” which is not appealable, did not constitute notice of entry of an appealable paper. Therefore, the appellant could proceed with their appeal on the merits.

Regardless of whether your client will be a potential appellant or respondent, understanding whether the Notice of Entry was proper can be a turning point in the case.  It can eliminate a party’s right to appeal if counsel is unaware of all the forms a Notice of Entry can take. Or, it can indefinitely extend a party’s time to take an appeal if counsel is not thorough in preparing the Notice of Entry.  The Notice of Entry is a routine step in the litigation process. However, its potential pitfalls have significant consequences.

Fewer pitfalls are associated with a Notice of Appeal.  The most important one is inadvertently limiting the issues available on appeal.  In New York, litigants can appeal those portions of an order they are “aggrieved by.”   A party is aggrieved by an order if the order deprives them of the relief they sought or the court granted their adversary the relief they opposed (see Mixon v TBV, Inc., 76 AD3d 144 [2d Dept 2010]).   By simply stating that a party is appealing from “each and every part of the order” or “each and every party” by which the litigant is aggrieved, the appellant preserves their rights to raise any appealable issue created by the order. However, if the Notice of Appeal spells out a particular issue, that is the only issue the appellate court has jurisdiction to hear (see Handelsman v Llewellyn, 180 AD3d 850 [1st Dept 2020). Thus, less is more when it comes to the Notice of Appeal. less is more when it comes to the Notice of Appeal.

The Notice of Entry and Notice of Appeal can either be a pass to the Appellate Division or a bar to the Appellate Division’s doors. They can also be strategic tools that can create pivot points in litigation.  A party’s inability to take an appeal may be the breaking point needed for settlement.  Or a party’s ability to prosecute a complete appeal can be that same breaking point.

Retaining appellate counsel as soon as possible provides the greatest opportunity for success.  Whether it is writing a brief, assisting in strategy, or helping to craft an argument, appellate counsel can assist litigators in securing better results and faster settlements.  Contact the Law Offices of Seth M. Weinberg, PLLC, to help you with your appeals, motions, and litigation strategy.