Opinion
704 CA 18–00682
07-31-2019
Thomas H. O'NEILL, Jr., Plaintiff–Respondent, v. Rose R. O'NEILL, Defendant–Appellant. (Appeal No. 5.)
SCHOEMAN UPDIKE KAUFMAN & GERBER LLP, NEW YORK CITY (BETH L. KAUFMAN OF COUNSEL), AND KENNEY SHELTON LIPTAK & NOWAK LLP, BUFFALO, FOR DEFENDANT–APPELLANT. LAW OFFICE OF RALPH C. LORIGO, WEST SENECA, JAMES P. RENDA, BUFFALO, FOR PLAINTIFF–RESPONDENT.
SCHOEMAN UPDIKE KAUFMAN & GERBER LLP, NEW YORK CITY (BETH L. KAUFMAN OF COUNSEL), AND KENNEY SHELTON LIPTAK & NOWAK LLP, BUFFALO, FOR DEFENDANT–APPELLANT.
LAW OFFICE OF RALPH C. LORIGO, WEST SENECA, JAMES P. RENDA, BUFFALO, FOR PLAINTIFF–RESPONDENT.
PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that said appeal is unanimously dismissed without costs.
Memorandum: On appeal from an order that, inter alia, denied her application for maintenance arrears, among other things, we reject defendant's contention that her appeal is timely. Plaintiff served defendant's attorney with a copy of the order with notice of entry by mail on March 10, 2011. Defendant filed a notice of appeal on September 7, 2017, outside the time period prescribed by CPLR 5513. We recognize that a slightly different version of the order also existed, and a copy of that version was not served with notice of entry until much later. Although that version contained an additional ordering paragraph, the language in that paragraph "merely clarified" the original order, and therefore "the time to appeal must be measured from the original [order]" ( Matter of Kolasz v. Levitt, 63 A.D.2d 777, 779, 404 N.Y.S.2d 914 [3d Dept. 1978] ). Inasmuch as the appeal from the original order was untimely, we dismiss the appeal (see id. ).