Legal Question in Appeals and Writs in New York

Re: premature appeal

If the attorney for your ex had no other address for your attorney it sounds as if it was proper service. If the attorney left no forwarding address etc. I don't know enough details; perhaps you should have been served directly,pro se, if your attorney was missing.

This is really too complicated for this format. If you wish to go into more detail, I would be happy to help but this can be a long expensive battle, and what is the exact issue?

Re: your appeal question

Hello and thanks for your inquiry.

Under New York's Civil Procedure Laws and Rules ("CPLR") 5513 (a), a notice of appeal must be served "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."

The question you have raised appears to be whether the time to take an appeal ever began to run. The time to appeal does not begin to run until either your opponent or you (or some other party, if there is one) serves a copy of the judgment or order appealed from and written notice of its entry.

Your statement does not provide sufficient facts. Among other things, I would need to know the date the final judgment was entered by the court, the dates of service of the papers to which you refer, and to look at complete sets of these papers that were served.

Your last question raises the question whether you served, separately or along with your notice of appeal, "a copy of the judgment or order and written notice of its entry" (or what might be construed by a court to be the equivalent). Depending upon the facts of your case, and aside from any other arguments you might have, an appeal from the final judgment might still be alive (1) if you served your notice of appeal before the final judgment was entered by the court, or (2) if the paper that you appealed from was not actually the final judgment but was an "order" or interlocutory judgment. Whether a paper is a final judgment is not determined by what it is labeled, but rather by its substance.

You can call me at (718) 575-8588 to discuss the matter further. Noreen Giusti.