Tuesday, April 15, 2008

Notice of Entry and Notice of Appeal: A Boring Topic, With A Noble History

For the last 150 years, New York's courts have, for the most part, followed the same procedure for processing orders and judgments. When a judge issues an order, that order must then be "entered," i.e. filed with the county clerk. The county clerk keeps a minute book, which is essentially a ledger, and whenever anything is filed a notation is made in the book. The clerk's minutes are now usually entered twice: they are hand written and then typed into a computer system. If you go to the records room of most courthouses -- particularly older courthouses, like the Manhatten Supreme Court -- you will see clerk's minute books going back hundreds of years.

Entry is important for several reasons: judgments do not begin collecting interest until they are entered, and appeals cannot be taken from an order that was not entered. Often, there is a significant gap of time between when an order is issued and when it is entered. How long it takes depends on how quickly the judge sends the order to the county clerk, if they send it at all. Just because you were mailed a copy of the order does not necessarily mean it was entered, and in some instances the judge will leave it to the parties to enter the order with the county clerk.
It seems odd that you would receive a document from the court, but then have to re-file it with the court before it takes effect, but that is how it sometimes works.

Pursuant to C.P.L.R. 5513, to preserve an appellant's right to appeal, a notice of appeal must served and filed within thirty days after service upon the appellant of a notice of entry. In the Federal Courts and many other states, the time for noticing an appeal begins the moment an order is entered. New York State Court, however, adds the twist that a "notice of entry" must be served.

"To be effective the ‘Notice of Entry’ must strictly comply with CPLR 5513 and state exactly when and with whom the order or judgment was entered, and if it describes the judgment or order, the description must be accurate." Unique Marble & Granite Org. Corp. v. Hamil Stratten Props., LLC, 13 Misc. 3d 1239A, 831 N.Y.S.2d 357 (Queens County Sup. Ct. 2006) citing Reynolds v. Dustman, 1 N.Y.3d 559, 772 N.Y.S.2d 247 (2003)(service of an unstamped copy of the order, with a cover letter saying it had been filed with the clerk, did not constitute proper notice of entry).

Although modern litigation practice is often forgiving of minor mistakes, "strict practice must be pursued to limit the time to appeal," and thus a notice of entry must be accurate. Falker v. New York, W. S. & B. R. Co., 100 N.Y. 86, 2 N.E. 628 (1885). An incorrect date of entry is a material defect that renders a notice of entry void. Nagin v. Long Island Savings Bank, 94 A.D.2d 710, 462 N.Y.S.2d 69 (2d Dept 1983); Ping Lum v. YWCA, 136 A.D.2d 972, 525 N.Y.S.2d 82 (4th Dept. 1988).

There is, however, no formal requirement for how a notice of entry is formatted. A party can, for example, provide a stamped copy of the order and rely on the clerk's stamp to provide the material elements of "date of entry and the name of the clerk of the court where the order was entered." Norstar Bank v. Office Control Sys., 78 N.Y.2d 1110 (1991). See also Deygoo v. Eastern Abstract Corp., 204 A.D.2d 596; 612 N.Y.S.2d 415 (2d Dept. 1994)(the absence of an index number is not a material defect in a notice of entry).

This system of entering orders and noticing entry appears to have originated in the 1840's and 1850's, when the Field Code and New York's first Code of Procedure was drafted. (Google Books has a good selection of old civil procedure treatises). At common law, there were no interlocutory appeals. After a judgment was entered, the losing party could submit a "writ of error" to the appellate court, and had the opportunity to include "appeals" regarding interim orders (such as discovery orders) only when they filed their write of error. With the enactment of the Code of Procedure in 1849, the term "appeal" was used for both final and interlocutory orders. For lawsuits that were pending in 1849, they were given two years from entry of judgment within which to file their appeal.

For new lawsuits after 1849, the parties were given "thirty days from after written notice of the judgment or order shall have been given to the party appealing." In the commetary, the drafters explain that the time for appealing does not begin to run until after the order or judgment is entered. The language was somewhat ambiguous, but there were a few early cases that clarified the practice.

The procedure today is substantially the same as it was in the nineteenth century. (See Falker, Supra). The one notable exception is that the Code's language indicates that only the successful party could serve notice of entry, not the prospective appellant. Thus, someone who won summary judgment, for example, could delay an appeal by not serving notice of entry. In his 1899 Encyclopedia of Pleadings and Practice, William McKinney suggests that the proper procedure in such a situation is to move the lower court to compel the successful party to serve notice of entry. The C.P.L.R. corrected this problem, and allows for either party to serve notice of entry.

Note: The motion that precipitated this post was: Barbera v. Summit School, 2008 NYSlipOp 71932U (2d Dept., May 14, 2008)("motion... to dismiss the appeal as untimely taken is denied on the ground that the notice of entry was defected and the entry date of the order was incomplete").  I did not want to mention the case in the original post until the motion was finally decided.


* How To Argue An Appeal
* New York Motion Practice

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Monday, April 7, 2008

To Catch A Predator Catches A Lawsuit

One of my favorite areas of law is Constitutional Rights litigation, and I consider myself lucky to be responsible for a few such cases.

I came across this decision today, Conradt v. NBC Universal , that I thought I would share. Conradt was a retired district attorney in Texas who was caught on NBC's "To Catch A Predator," which is a reality television show that works with law enforcement to catch pedophiles. The show ordinarily has someone pose as a child on the internet, arrange a meeting, and then the pedophile shows up to find the police and an NBC camera crew.

Conradt, however, did not go to the house, and so -- according to the complaint -- NBC arranged with the police for him to be arrestaed by a SWAT team. The complaint alleges that the show purposely made a spectacle out of the arrest, and Contadt committed suicide as a result. Most of the causes of action were dismissed, but the court (the Southern District of New York, Judge Chin) allowed two to proceed against NBC: a cause of action for Intentional Infliction of Emotional Distress, and a cause of action for violating Conradt's civil rights under the 4th and 14th Amendments. One of the more interesting aspects of the decision is that NBC conceded that it was functioning as a state actor, thus allowing the Constitutional claim to go forward.