Majority
Memorandum: The basic time limit to take an appeal is within 30 days after service upon the appellant of a copy of the judgment or order “and written notice of its entry” (CPLR 5513 [a]). The single exception to the general rule is where the appellant himself ‘ ‘ has entered the judgment or order or served notice of its entry ”, in which event his appeal is limited to 30 days after “ he did either ”. Here the appellants did not ‘ ‘ enter ’ ’ the order and the respondent served the notice of its entry. Appellants’ time to appeal, therefore, ran from the time of service of notice of entry upon them. The decision in People ex rel. Manhattan Stor. & Warehouse Co. v. Lilly ( 299 N. Y. 281 ) treated the order there considered as having been entered by appellant. No such situation existed here. (Cf. Matter of Katz, 13 N Y 2d 924 .)
Accordingly, the order denying the motion to compel plaintiff to accept service of the notice of appeal to the Appellate Division should be reversed and the motion granted.
Order reversed, with costs, in accordance with the memorandum herein. First question certified answered in the affirmative; second question certified answered in the negative. Motion for stay denied.
Chief Judge Desmond and Judges Dye, Fulo, Van Voorfus, Burke, Soileppi and Beroan concur.
Cases cited
- People ex rel. Manhattan Storage & Warehouse Co. v. Lilly 299 N. Y. 281 p. 926
- In re the Accounting of Katz 13 N Y 2d 924 p. 926