Lampkin v Raines

Annotate this Case

Download PDF

Lampkin v Raines 2022 NY Slip Op 32797(U) August 19, 2022 Supreme Court, New York County Docket Number: Index No. 150633/2021 Judge: Arlene Bluth Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 150633/2021 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 08/19/2022 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. ARLENE BLUTH Justice ---------------------------------------------------------------------------------X VINCENT LAMPKIN INDEX NO. MOTION DATE Petitioner, MOTION SEQ. NO. 14 150633/2021 08/11/2022 003 -vJOHN RAINES AS MANHATTAN BOROUGH COMMISSIONER OF THE DEPARTMENT OF BUILDING OF THE CITY OF NEW YORK, DECISION + ORDER ON MOTION Respondent. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 003) 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79 were read on this motion to/for LEAVE TO FILE . The motion by petitioner to vacate respondent’s notices of entry for motion sequences numbers 001 and 002 is denied. Background In this Article 78, petitioner seeks to annul a decision by respondent finding that the Department of Housing Preservation and Development (“HPD”) must complete required work at a building owned by petitioner. The judge previously assigned to this case granted respondent’s cross-motion to dismiss and denied the petition on October 27, 2021 (NYSCEF Doc. Nos. 58 and 59). Both decisions referenced the reasons stated on the record (id.). On May 10, 2022, respondent e-filed notices of entry for both decisions. 150633/2021 LAMPKIN, VINCENT vs. JOHN RAINES AS MANHATTAN Motion No. 003 [* 1] 1 of 4 Page 1 of 4 INDEX NO. 150633/2021 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 08/19/2022 Petitioner seeks to vacate the notices of entry. He claims that respondent failed to include the entire order of the Court with the notice of entry by not including the transcript. Petitioner argues that he was prejudiced by respondent’s failure by having to contact the Court reporter himself to get a copy of the Court’s decision. In the alternative, petitioner asks for leave to appeal and directs the Court to read the petition as justification for this request. In opposition, respondent observes that petitioner had until June 9, 2022 to file a notice of appeal (30 days from when respondent filed the notices of entry) and failed to do so. It argues that petitioner was fully aware of the fact that the Court had previously dismissed the petition in October 2021 and that petitioner had ample time to request the transcript. Respondent points out that petitioner attached a transcript to the instant motion. It argues that the instant motion is simply an attempt by petitioner to get more time to file a notice of appeal. The Court observes that counsel for petitioner requested, and was granted, two adjournments in order to file a reply and did not submit anything. Discussion “The requirement that a party take an appeal within 30 days from service of an order or judgment with notice of entry is nonwaivable and jurisdictional in nature” (W. Rogowski Farm, LLC v County of Orange, 171 AD3d 79, 83, 96 NYS3d 88 [2d Dept 2019]). Here, there is no dispute that respondent filed the notices of entry on May 10, 2022. Instead of filing a notice of 150633/2021 LAMPKIN, VINCENT vs. JOHN RAINES AS MANHATTAN Motion No. 003 [* 2] 2 of 4 Page 2 of 4 INDEX NO. 150633/2021 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 08/19/2022 appeal, for some reason, petitioner filed the instant motion to vacate the notices of entry on June 9, 2022 (the date respondent asserts is the deadline to file a notice of appeal). The Court rejects petitioner’s claim that the notices of entry are improper. Petitioner does not cite a single case for the proposition that a notice of entry has to include a transcript where the order references a decision made on the record. CPLR 5513(a) states that the time to appeal begins to run from when the “judgment or order” to be appealed from, along with “notice of its entry” is served. The orders were included in both notices of entry. Moreover, petitioner’s claim that he was somehow prejudiced by having to ask for the transcript is ludicrous. The judge previously assigned to this proceeding issued a decision in October 2021 and respondent waited until May 2022 to file a notice of entry. Petitioner and his counsel were both fully aware of the Court’s decision for many, many months. He had ample opportunity to request the transcript. And, of course, this argument makes little sense because the Court denied the petition in its entirety, meaning that petitioner had every incentive to file his own notice of entry and appeal if he actually wanted to appeal the decision. The Court also declines to grant petitioner’s request for leave to file an untimely appeal. The Court observes that petitioner did not make any substantive arguments in favor of this claim; rather he argued that the Court should grant this request “for reasons stated in petitioner’s Petition . . . and petitioner’s Affirmation in Support of Notice of Motion to Amend Petition . . . and petitioner’s Affidavit in Opposition” (NYSCEF Doc. No. 63, ¶ 11). A vague reference to papers previously filed is not sufficient to explain why he should be entitled to file an untimely 150633/2021 LAMPKIN, VINCENT vs. JOHN RAINES AS MANHATTAN Motion No. 003 [* 3] 3 of 4 Page 3 of 4 INDEX NO. 150633/2021 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 08/19/2022 appeal. Moreover, respondent correctly argued that the decision dismissing the petition rendered petitioner’s potential appeal as an “appeal as of right” (CPLR 5701[a]). Petitioner did not explain how CPLR 5701(c), the provision cited in his notice of motion, would apply to the instant situation. That provision appears to apply to appeals of orders which are “not appealable as of right” (CPLR 5701[c]). Accordingly, it is hereby ORDERED that the motion by petitioner is denied in its entirety. 8/19/2022 DATE CHECK ONE: $SIG$ ARLENE BLUTH, J.S.C. X CASE DISPOSED GRANTED X • DENIED APPLICATION: SETTLE ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN ~ 150633/2021 LAMPKIN, VINCENT vs. JOHN RAINES AS MANHATTAN Motion No. 003 [* 4] 4 of 4 NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT • • OTHER REFERENCE Page 4 of 4

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.