Opinion
DOCKET NO. CA 17-00371
03-06-2017
SOFIA ANTHIS, PLAINTIFF-RESPONDENT, v. WILLIAM ANTHIS, DEFENDANT-APPELLANT.
PRESENT:
Appellant having moved for permission to proceed as a poor person on the appeal taken herein from a judgment of the Supreme Court entered in the Office of the Clerk of the County of Monroe on July 15, 2016, and respondent having cross-moved to dismiss the appeal on the ground that husband is not an aggrieved party pursuant to CPLR 5511 or, in the alternative, for failure to timely serve the appeal pursuant to CPLR 5513 (a),
Now, upon reading and filing the affidavit of William J. Anthis sworn to February 10, 2017, the affirmation of Donald A. White, Esq., dated February 17, 2017, the affidavit of Sofia Anthis sworn to February 17, 2017, and the notices of motion and cross motion with proof of service thereof, and due deliberation having been had thereon,
It is hereby ORDERED that appellant's motion for permission to proceed as a poor person is denied, and
It is further ORDERED that respondent's cross motion insofar as it seeks to dismiss the appeal as untimely pursuant to CPLR 5513 is denied because it fails to demonstrate respondent served appellant with both a copy of the judgment entered July 15, 2016, and valid notice of entry meeting the technical requirements sufficient to trigger the 30-day time period set forth in CPLR 5513 (a) (cf. Matter of Reynolds v Dustman, 1 NY3d 559), and
It is further ORDERED that respondent's cross motion insofar as it seeks to dismiss the appeal on the ground that appellant is not an aggrieved party pursuant to CPLR 5511, is denied without prejudice and leave to renew the arguments set forth in support of and in opposition to this aspect of the cross motion in the parties' briefs and at oral argument.
Entered: March 6, 2017
Frances E. Cafarell, Clerk