CPLR 5501(c) permits a Notice of Appeal upon a Decision and Order dismissing a case even if your adversary files a subsequent Judgment to later claim the Notice of Appeal was premature. On September 28, 2009, in the appeal of Robert H. Rotering, etc., appellant, v Perry Satz, et al., respondents., Docket 2009-02773, the Second Department granted my motion to vacate the dismissal of my Notice of Appeal and reinstate the appeal. Here's how...
The vacate happened because Defendants' counsel filed a "judgment" subsequent to my Notice of Appeal on the Order, which they then used that sharp practice to argue I appealed from the wrong paper.order entered after service of the notice of appeal and before entry of the order of the appellate court upon such appeal. Koslowski v. Koslowski, 251 A.D.2d 294, 672 N.Y.S.2d 808 (2 Dept. 1998). I made the point that the Notice of Appeal was proper notice and Defendants' filing a redundant paper as if they could create a technicality showed they had no legal finesse. (emphasis added). Thus, I explained, there is a deeming procedure that pulls the later filed judgment into the originally filed Notice of Appeal on the final Order.
I represented Plaintiff Rotering in a legal malpractice case filed in 2008. On February 23, 2009, Dutchess County Supreme Court Judge Pagones entered an Order and Decision dismissing Dr. Rotering's complaint after 9 months of litigation, over 3,000 pages of discovery and without notice or a motion requesting dismissal, among other errors in his Decision. I discovered that Judge Pagones was reversed before by the Second Department for dismissing a case without notice in Daniels v. King Chicken & Stuff, Inc, 35 A.D.3d 345, 827 N.Y.S.2d 186 (2d Dept.,2006). Knowing the law and Judge Pagones' history, on March 12, 2009 I filed a Notice of Appeal. That commenced the appeal process, giving me 6 months, or until September 12, 2009, to file Plaintiff's appellate brief.
In May, 2009, months after being served with the Notice of Appeal, Defendants filed what they called a "Judgment" with the Dutchess County Clerk's office in their attempt to undercut my Notice of Appeal. That "judgment" was actually a redundant piece of paper reiterating the Order that dismissed the case which my Notice of Appeal was based on. To add to the confusion Defendants were trying to create by their "judgment" filing, the Dutchess County Chief Clerk, Mr. Kendall signed and filed it as a "judgment" after my Notice o Appeal was filed because the Clerk's Office informed me that they file anything that comes to their desk. That's a blog for another day.
I wrote to Judge Pagones to inform that a judgment was filed that he never directed to be filed nor was it necessary considering that his Order and Decision was final. On May 12, 2009, Judge Pagones confirmed in a letter that, "The court has no knowledge of the procedure employed for submitting the judgment to Mr. Kendall for his signature."
in June, 2009, Defendants counsel then filed a Motion to Dismiss the appeal to the Second Department by claiming my Notice of Appeal should have been filed on their "judgment", not the Order. Incredibly, Defendants counsel always communicated and served documents to me via e-mail, which they had 2 addresses. This time, they deliberately did not to send an e-mail to prevent me from getting notice and undermine my filing opposition to their motion to the appellate court. On August 15, 2009, my weekly review of appellate decisions found an August 7, 2009 Second Department order dismissing Dr. Rotering's appeal. Just the freebie the Defendants hoped for. What Defendants and their counsel did not know is I have been accused by other attorneys of drafting pleadings in my sleep, so I immediately drafted a Motion to Vacate the dismissal and reinstate the appeal, and overnighted it to the Second Department. All in a good night's sleep.
My motion explained that CPLR 5501(c) permits the Notice of Appeal to be filed on a final Order despite a later filed judgment. Pursuant to CPLR 5501(c) "the notice of appeal from an order...addressed to the pleadings, shall be deemed to specify a judgment upon said
I also argued the obvious: that Defendants' and their legal malpractice carrier counsel were ridiculous to even argue the appeal should be dismissed by claiming it was filed on the wrong paper. They certainly had notice of the appeal since it was filed in March, 2009, two months before they decided to file their redundant May 1, 2009 "judgment". I think the Second Department got the message that Defendants were underhanded and childish to file a later "judgment" reiterating the Order, and then use that as an excuse to avoid the appeal. Also, I brought to the Second Department's attention that CPLR 5512 provides that if a timely appeal is taken from the wrong document, and no prejudice results, and the proper paper is furnished to the appellate court, "the appeal shall be deemed taken from the proper judgment or order." This comports with this Department’s practical approach in situations like this by finding that a technical defect that does not prejudice any party and is easily correctable.
The Second Department agreed with me and did not appreciate Defendants'' "procedure" in attempting to vacate the appeal. Defendants and their counsel had to face the appeal they obviously feared since they resorted to such an underhanded practice to try to defeat a simple Notice of Appeal. And of course I later won the appeal.
I leave you with this thought: if you can not win on the law, reasonable people (and lawyers are supposed to be people) settle their differences, not make them worse. It is more intelligent to discuss, negotiate and create resolutions to problems when the facts and the law are against you, rather than mock the system and the law.