Asraf v Ture

[*1] Asraf v Ture 2005 NY Slip Op 50109(U) Decided on February 2, 2005 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 2, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and GOLIA, JJ.
2003-1391 K C

SIMONE ASRAF, Respondent,

against

HALILULLAH TURE and JOLANTA B. TURE, Appellants.

Appeal by defendants from a judgment of the Civil Court, Kings County (B. Bayne, J.), entered July 23, 2003, upon a jury verdict in plaintiff's favor in the principal sum of $60,000.

Appeal unanimously dismissed.

The plaintiff established that the defendants' appeal was untimely. CPLR 5513 (a) provides in part that "an appeal as of right must be taken 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 . . ."

In the case at bar, plaintiff's attorney established that he mailed a copy of the judgment with written notice of entry to defendants' attorney as well as to both defendants individually on July 23, 2003 and that the defendants' notice of appeal was served upon plaintiff's attorney 58 days later. While the notice of entry referred to an order rather than a judgment, a copy of the judgment was sent with the notice of entry to the defendants' attorney.

In Falker v N.Y., W.S. & B. R. Co. (100 NY 86, 89 [1885]), the court stated: "Although strict practice must be pursued to limit the time to appeal, and even a technical irregularity in giving the required notice will be considered, still there must be some irregularity, and a mere inaccuracy in the notice which violates no rule of practice and is in itself immaterial, will not be sufficient to avoid it."
In the instant matter, the inaccuracy is immaterial and, thus, the notice of appeal was untimely (see Deygoo v Eastern Abstract Corp., 204 AD2d 596 [1994]; see also Strober King Bldg. Supply Ctrs. v Merkley, 266 AD2d 203 [1999]).
Decision Date: February 02, 2005