Opinion
2011-12-8
In the Matter of KEVIN C., Respondent, v. CLAUDIA C., Appellant.
Leah Walker Casey, Schenectady, for appellant. Pozefsky, Bramley & Murphy, Albany (Anthony J. Murphy of counsel), for respondent.
Leah Walker Casey, Schenectady, for appellant. Pozefsky, Bramley & Murphy, Albany (Anthony J. Murphy of counsel), for respondent. Patricia L.R. Rodriguez, Schenectady, attorney for the children.
Before: PETERS, J.P., LAHTINEN, STEIN, McCARTHY and GARRY, JJ.
McCARTHY, J.
Appeal from an order of the Family Court of Schenectady County (Assini, J.), entered November 17, 2009, which granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 6, to modify a prior order of custody.
Petitioner sought to modify a prior order providing the parties with joint legal and physical custody of their two children. By order entered November 17, 2009, *914 Family Court granted the application by awarding petitioner sole legal and physical custody, with visitation to respondent. As reflected in a letter from the attorney for the children, as well as an affidavit of service, that attorney mailed the order to each parent's counsel on November 19, 2009. Respondent filed and served a notice of appeal on January 4, 2010.
We now dismiss the appeal as untimely. As relevant here, “[a]n appeal ... must be taken no later than [30] days after the service by a party or the child's attorney upon the appellant of any order from which the appeal is taken” (Family Ct. Act § 1113). Service by mail is complete upon mailing, and five days are added to the prescribed period when service is by mail ( see CPLR 2103[b] ). Generally, “papers to be served upon a party in a pending action shall be served upon the party's attorney” (CPLR 2103[b]; see Family Ct. Act § 165[a]; § 1118). Here, the affidavit of service created a presumption that a proper mailing occurred on November 19, 2009 ( see Engel v. Lichterman, 62 N.Y.2d 943, 944, 479 N.Y.S.2d 188, 468 N.E.2d 26 [1984]; Andersen v. Mazza, 193 A.D.2d 898, 899, 597 N.Y.S.2d 769 [1993] ). Respondent did not present any evidence that rebutted the presumption. Thus, respondent had to file and serve her notice of appeal not more than 35 days from the date that the attorney for the children mailed the order to respondent's attorney. Because respondent did not meet that deadline, her appeal is untimely and we lack jurisdiction to consider it ( see Matter of Kathleen E. v. Charles F., 86 A.D.3d 669, 670, 926 N.Y.S.2d 329 [2011]; Matter of Deandre GG. [Charlice HH.], 79 A.D.3d 1384, 1385, 912 N.Y.S.2d 801 [2010], lv. denied 16 N.Y.3d 708, 2011 WL 1161017 [2011] ).
ORDERED that the appeal is dismissed, without costs.