When should you file a notice of appeal in New York?
You have been waiting for months and you finally got an order from the court. It’s bad. It refuses relief to your client, or grants relief to another party that harms your client. Your stomach sinks. You know your client needs to appeal. Your head is spinning…how much time do I have? When should I file a notice of appeal for my client? Help!
Here is an answer to your question (if you are appealing an order or judgment from a New York state court). There are three parts, starting from the most well known to the least expected.
First, the Civil Practice Law & Rules (CPLR), which govern civil procedure in New York courts, states that:
“An appeal as of right 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, except that when the appellant has served a copy of the judgment or order and written notice of its entry, the appeal must be taken within thirty days thereof.”
It also states:
“An appeal shall be taken by serving on the adverse party a notice of appeal and filing it in the office where the judgment or order of the court of original instance is entered...”
Read the two together for the obvious answer: you must serve and file a notice of appeal for your client within 30 days of service of the order with written notice of entry. This 30-day rule also applies to motions for permission to appeal in cases where the appeal is not “as of right.” See CPLR §5513(b).
Do not mess around with this rule. It is jurisdictional, which means the Appellate Division and Court of Appeals require strict compliance—even one day past the 30-day time period runs afoul of the authorizing statute and your client’s appeal will be dismissed as untimely.
The second part to the answer focuses on the trigger for the 30-day rule: the deadline to serve and file a notice of appeal is 30 days from the date of service of a written notice of entry. Most cases in New York are e-filed these days, so it’s easy to count 30 days from the day you get that notice in your inbox. But don’t forget to add 5 days if your case is not e-filed and/or you received a notice of entry by mail.
This second part confuses a lot of attorneys because their lawyer minds immediately ask the next two related questions (being the good analytical thinkers that lawyers are):
(i) If the order or judgment is e-filed on NYSCEF, do I have to e-file a separate notice of entry?
Yes, you do—even though it sounds like redundant nonsense. Article 55 of the CPLR (which governs appeals) has not caught up with the internet age, and §5513 requires service of written notice of entry to trigger the time to take an appeal.
Fun fact: if your adversary does not file a notice of entry then the time to take an appeal is not triggered and you can sit on your laurels for years until your client wants to appeal, which brings me to the other point of confusion…
(ii) If my adversary does not serve and file a notice of entry and my client wants to appeal, should I serve and file it?
This one is confusing because there is no explicit rule in Article 55 that requires service and filing of the notice of entry to take an appeal. It is only the trigger for the time to take an appeal, rather than jurisdictional. That means the Appellate Division or Court of Appeals can consider an appeal even if a notice of entry was never served or filed.
But as an appellate lawyer—because I like clean records and all boxes checked—I recommend you serve and file a notice of entry yourself if your client is ready to appeal.