Narrative Opinion Summary
Terry Merkley appeals a judgment from the Supreme Court of Rockland County favoring the plaintiff for $118,735.79, rendered on July 2, 1998. The appeal is dismissed with costs awarded to the respondent. The court notes that an appeal must be filed within 30 days of service of the judgment and notice of entry, as per CPLR 5513(a). The plaintiff mailed the judgment and notice to the appellant’s counsel on July 30, 1998, but the notice of appeal was dated September 28, 1998, which is outside the allowed timeframe. A properly executed affidavit of service creates a presumption of correct mailing, supported by Engel v Lichterman. CPLR 2103(b)(2) states that service is considered complete upon mailing. The appellant did not contest the affidavit's validity, and his claim that his counsel received the judgment on September 25, 1998, is insufficient to counter the presumption of proper mailing. The ruling is upheld by Justices Bracken, Friedmann, Goldstein, and Smith.
Legal Issues Addressed
Completion of Service by Mailing under CPLR 2103(b)(2)subscribe to see similar legal issues
Application: The court found that service was completed upon mailing, as per CPLR 2103(b)(2), which contributed to the determination of the appeal's untimeliness.
Reasoning: CPLR 2103(b)(2) states that service is considered complete upon mailing.
Insufficiency of Contesting Presumption with Receipt Date Claimssubscribe to see similar legal issues
Application: The appellant's claim regarding the receipt date of the judgment was deemed insufficient to rebut the presumption of proper mailing.
Reasoning: The appellant did not contest the affidavit's validity, and his claim that his counsel received the judgment on September 25, 1998, is insufficient to counter the presumption of proper mailing.
Presumption of Proper Mailing upon Affidavit of Servicesubscribe to see similar legal issues
Application: The court held that an affidavit of service creates a presumption of proper mailing, which was not contested by the appellant, leading to the dismissal of the appeal.
Reasoning: A properly executed affidavit of service creates a presumption of correct mailing, supported by Engel v Lichterman.
Timeliness of Filing Appeals under CPLR 5513(a)subscribe to see similar legal issues
Application: The appeal was dismissed because it was not filed within the 30-day period stipulated by CPLR 5513(a) after the service of the judgment and notice of entry.
Reasoning: The court notes that an appeal must be filed within 30 days of service of the judgment and notice of entry, as per CPLR 5513(a).