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650 Park Avenue Corp. v. McRae

decided: January 8, 1988.

650 PARK AVENUE CORPORATION, PLAINTIFF-APPELLEE,
v.
MARIA MCRAE, DEFENDANT-APPELLANT



Motion to dismiss an appeal from a judgment of the United States District Court for the Southern District of New York (Robert L. Carter, Judge) on the ground that the defendant failed to file a timely notice of appeal. Concluding that the defendant had made a proper "showing of excusable neglect" under Fed. R. App. P. 4(a)(5), the district court extended the time for filing a notice of appeal. We hold that the district court abused its discretion in granting the extension and therefore dismiss the appeal.

Author: Winter

WINTER, Circuit Judge:

This motion requires us to address the issue of what constitutes "excusable neglect" justifying a district court's extension of the time in which to file a notice of appeal under Fed. R. App. P 4(a)(5). Plaintiff 650 Park Avenue Corporation seeks the dismissal of an appeal by defendant Maria McRae from Judge Carter's grant of summary judgment awarding plaintiff damages in the amount of 0,586.50. Although Fed. R. App. P 4(a)(1) provides, in civil cases not involving the government, that a "notice of appeal . . . shall be filed within 30 days after the date of entry of the judgment . . . appealed from," McRae failed to file her notice of appeal within the thirty-day period. Instead, fifty-six days after judgment had been entered, McRae filed a motion under Rule 4(a)(5) for an extension of time, arguing that the failure to comply with Rule 4(a)(1) was the result of "excusable neglect." Judge Carter granted the extension. We conclude that the extension constituted an abuse of discretion and dismiss the appeal.

The relevant facts may be briefly stated. The judgment was signed by Judge Carter in the presence of defendant and her attorneys on September 3, 1987 and was filed the same day. Thirty-six days later, on October 9, 1987, plaintiff began efforts to enforce its judgment by filing a motion for an order requiring McRae to surrender her cooperative apartment at 650 Park Avenue in Manhattan. The motion was returnable on October 30 before Judge Carter. On October 29, McRae requested the adjournment of plaintiff's motion and sought an order extending the time in which she could file a notice of appeal. In support of her request for an extension, McRae presented two affidavits. The first, signed by her attorney, Joseph M. Aronow, Esq., reads in pertinent part as follows:

5. On or about September 3, 1987 the defendant Maria McRae instructed me to file a Notice of Appeal to the United States Circuit Court of Appeals.

6. On or about September 23, 1987 the Notice of Appeal was typed in final form by Estelle Moody and executed by me, Exhibit 13. See affidavit of Estelle Moody annexed.

7. Immediately thereafter discussions were entered with the Fidelity & Deposit Company of Maryland to secure a Supersedeas Bond; and with Shearson Lehman Bros. to arrange for collateral for the bond. See letter dated September 29, 1987 to Shearson. (Exhibit 14). Arrangements were made with Shearson to deliver a bearer bond in the amount of $100,000.00 to the Bank of New York as collateral for a Letter of Credit to be issued by the Bank of New York in favor of the Fidelity & Deposit Company of Maryland. After considerable delay on the part of Shearson, the arrangements were completed and Fidelity & Deposit Company issued a Supersedeas Bond, Exhibit 15.

8. In making arrangements for the filing of the Supersedeas Bond, I first discovered that the Notice of Appeal had not been filed as I had directed on September 23, 1987.

9. Ordinarily I use the American Clerical Service to file my papers. Upon inquiry, they informed our office that they have no record of receiving the Notice of Appeal from us or filing with the clerk of the United States District Court. That [sic] there exists excusable inadvertence in the failure to insure the perfection of the filing of a Notice of Appeal within the thirty day statutory period. That [sic] relief as provided in Rule 4(a)(5) of the Federal Rules of Appellate Procedure for the United States Court of Appeals permits for [sic] extension for an additional thirty days for the filing of the Notice [sic] of Appeal with the court's approval.

The second affidavit, that of Estelle Moody, stated in its entirety:

1. I am employed as a secretary in the office of Joseph M. Aronow and make this affidavit in support of defendant's application for an Order to Show Cause in the above-entitled matter.

2. On or about September 23, 1987 I typed the final form of the Notice of Appeal in this action, a copy of which is annexed to the affidavit of Joseph M. Aronow herein. I typed this document from a pencilled draft form prepared by Mr. Charles C. Leutke of our office dated September 3, 1987.

3. Mr. Aronow reviewed the document and signed it in my presence on the date referred to above.

On November 5, 1987, Judge Carter issued an order giving McRae one week to file a notice of appeal. McRae filed her ...


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