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SAMUEL HART v. GUS PANTILIDES (10/31/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT


October 31, 1968

SAMUEL HART, APPELLANT,
v.
GUS PANTILIDES, RESPONDENT

Concur -- Stevens, J. P., Steuer, Capozzoli, Tilzer and McNally, JJ.

The record in this case is woefully defective. The notice of appeal appearing in the record, which there is every reason to believe is not the notice upon which plaintiff is proceeding, is dated August 31, 1967, and purports to bring up for review an order dated May 24, 1967. Such a notice would be prima facie untimely and is attacked in respondent's brief. Respondent refers to another notice of appeal which is nearly a year later in date. Appellant has made no response at all to any of respondent's claims as to the appeal being barred by limitation of time. However, while it appears prima facie that the appeal is untimely (see Matter of Stern Bros. [ Livingston ], 2 A.D.2d 553, 556) we recognize that there may be circumstances under which the appeal would be timely (Matter of Katz, 13 N.Y.2d 924; see, also, 7 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 5513.03). No satisfactory determination can be made on this record, lacking as it does any proof as to the entry of the order, the date of the motion for reargument, and any facts as to appellant's knowledge or ignorance of the entry of the order appealed from. Under these circumstances we feel obliged to proceed in view of the challenge on the limited record, but we would entertain a motion for reargument of this disposition upon a complete record, if appellant is so advised.

Disposition

Appeal from order entered May 24, 1967, dismissed as untimely, without costs or disbursements.

19681031

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