Opinion
Index No. 150692/2022 Motion Seq. No. 002 NYSCEF Doc. No. 70
09-13-2024
In the Matter of the Application of ROBERT E. MUNGIGUERRA, Petitioner, For a Judgment Under Article 78 of the Civil Practice Law and Rules v. DANIEL A. NIGRO, as the Fire Commissioner of the City of New York and as Chairman of the Board of Trustees of the New York City Fire Department Article I-B Pension Fund, THE BOARD OF TRUSTEES of the New York City Fire Department, Article I-B Pension Fund, and JAMES LYNCH, M.D., VENKATESHA REDDY, M.D., ALAN DAVID, M.D., PETER NEUMANN, M.D., DAMIAN MARTINO, M.D., LAWRENCE SCHERER, M.D., in their capacity as THE MEDICAL BOARD of the New York City Fire Department, Article I-B Pension Fund, Respondents.
Unpublished Opinion
MOTION DATE 2/27/2024
DECISION & ORDER
SHAHABUDDEEN ABID ALLY, A.J.S.C.
The following e-filed documents, listed by NYSCEF document number, were read on this motion (Seq. No. 2) to/for CPLR ARTICLE 78 (BODY OR OFFICER): 58-69
By a Decision and Order dated July 31, 2023 (the "Art 78 Decision"), the Honorable Laurence L. Love, J.S.C., granted petitioner's Article 78 petition, holding that petitioner was entitled to accident disability retirement benefits retroactive to the date of his retirement from the New York City Fire Department in 2021. (NYSCEF Doc. 52) As reflected in the submitted NYSCEF notification email sent to the parties, the Art 78 Decision was uploaded to NYSCEF on August 1, 2023. (Id. Doc. 66) Later on August 1, 2023, petitioner filed a Notice of Entry, which incorrectly noted that the Art 78 Decision was dated August 1, 2023, and further stated that the Art 78 Decision "was duly entered and filed in the Office of the Clerk of the County of New York on August 1, 2023." (Id. Doc. 53) The Art 78 Decision was, as required, attached to petitioner's Notice of Entry. (Id.)
On November 7, 2023, petitioner's counsel emailed respondents' counsel stating that the time for respondents to file a Notice of Appeal had run and asking that petitioner's case therefore be "added to Fire Pension Fund Board of Trustees calendar for 11/17/23 for the appropriate action." (Id. Doc. 61) Respondents' counsel replied on November 14, 2023, stating that "the notice of entry filed was not valid" because "it does not accurately describe the appealable paper" and therefore "respondents' time to appeal has not begun to run." (Id.) Subsequently, on November 28, 2023, respondents filed a separate Notice of Entry of the Art 78 Decision. (Id. Doc. 54) Respondents' Notice of Entry correctly listed the date of the Art 78 Decision as July 31, 2023, and stated that it "was duly entered and filed in the Office of the Clerk of the County of New York on August 10, 2023." (Id.) Respondents then filed a Notice of Appeal two days later, on November 30, 2023. (Id. Doc. 56)
On January 12, 2023, petitioner filed the instant motion by Order Show Cause ("OSC") seeking to strike respondents' Notice of Appeal as untimely filed. (Id. Doc. 58) The Court signed the OSC on January 16, 2023, and it was entered on January 18, 2024. (Id. Doc. 63) Respondents filed their opposition papers on February 6, 2024, and petitioner filed his reply on February 26, 2024. (Id. Docs. 65-69)
In his motion, petitioner argues that respondents' Notice of Appeal is untimely because it was filed well beyond 30 days after petitioner's Notice of Entry of the Art 78 Decision was filed and served. See CPLR § 5513(a) (establishing 30-day deadline). Petitioner argues that his admittedly incorrect identification of the issue date of the Art 78 Decision is a technical defect in the Notice of Entry that does not prejudice respondents, because the Art 78 Decision was annexed to the Notice of Entry, and should therefore be disregarded by the Court pursuant to its discretion under CPLR § 2001.
Respondents, however, maintain that petitioner's Notice of Entry is defective and a nullity because it incorrectly notes the date of entry of the Art 78 Decision. According to respondents, the Art 78 Decision was entered in the clerk's office on August 10, 2023, not August 1, 2023, the date it was uploaded to NYSCEF. As proof of their claim, respondents submit a notification email sent by NYSCEF to all parties on August 10, 2023, with the express heading of "Notification of Entry of Order/judgment 08/10/2023." (Id. Doc. 68) The notification email also expressly states: "Please note that the above referenced order/judgment has been entered in the office of the County Clerk. The date and time of entry are indicated by the file stamp affixed to the document and displayed on the document detail page." (Id.) The Court notes that the docket indicates that while the Art 78 Decision was received by the clerk's office on August 1, 2023, it was filed on August 10, 2023. Further, the copy of the Art 78 Decision now on the docket is stamped "Filed: New York County Clerk 08/10/2023 09:34 AM," the same date and time on which the NYSCEF notification of entry was sent to the parties.
"It is well settled that the requirements of CPLR 5513(a) must be strictly followed" and that "[c]ompliance with CPLR 5513(a) requires a notice of entry that refers to the appealable paper, and the date and place of its entry." Reynolds v. Dustman, 1 N.Y.3d 559, 560 (2003) (citation omitted).
Contrary to petitioner's contention, entry of an order by the clerk is a separate ministerial step from upload of the order to NYSCEF. Here, the docket itself, as well as the NYSCEF notices submitted by respondents, indicate that the Art 78 Decision was not entered in the clerk's office until August 10, 2023. Therefore, petitioner's service of his Notice of Entry, which was premature and incorrectly listed the date of entry as August 1, 2023, is a nullity, and respondents' appeal was timely filed within 30 days of their own conforming Notice of Entry. Baranello v. Westchester Square Med. Ctr., 282 A.D.2d 259 (1st Dep't 2001) ("Since the notice of entry of the November 22, 1999 order set forth an incorrect date of entry, its service was a nullity; accordingly, plaintiff's appeal was timely.").
Accordingly, it is hereby:
ORDERED that petitioner's motion brought by OSC (Seq. No. 2) is DENIED; and it is further
ORDERED that, within 20 days from entry of this order, petitioner shall serve a copy of this order with notice of entry upon respondents and upon the Clerk of the General Clerk's Office (60 Centre Street, Room 119); and it is further
ORDERED that service upon the Clerk shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (Revised August 15, 2019).
The protocols are available at https://www.nycourts.gov/LcgacyPDFS/courts/lid/supctmanh/Efil-protocol.pdf.
ORDERED that any requested relief not expressly granted herein is denied; and it is further
ORDERED that the Clerk shall mark Motion Sequence 2 decided in all court records.
This constitutes the decision and order of the Court.