MEMORANDUM AND ORDER
Defendants move for an extension of time to file a late notice
of appeal, under either Rule 60(b) of the Federal Rules of Civil
Procedure ("Fed.R. Civ.P.") or Rule 4(a)(5) of the Federal
Rules of Appellate Procedure ("Fed.R.App.P."). The motion is
granted pursuant to Fed.R.App.P. 4(a)(5).
Plaintiff David Ishay ("Ishay") brought this action pursuant
to 42 U.S.C. § 1983 and New York law alleging various
constitutional and state law violations arising from his arrest
and the seizure of his automobile. After a jury trial, the Court
entered judgment against all defendants on April 11, 2001.
Defendants, who are represented by the Corporation Counsel of
the City of New York ("Corporation Counsel"), filed a timely
motion for judgment as a matter of law or in the alternative for
a new trial, under Fed.R.Civ.P. 50 and 59. The Court denied the
motion in a Memorandum and Order dated August 13, 2001, which
was entered on August 14, 2001. Defendants do not contest that
they received timely notice of this order. Cf. Fed.R.App.P.
4(a)(6) ("The district court may reopen the time to file an
appeal [if] . . . the moving party . . . did not receive notice
[of entry of judgment] . . . within 21 days after entry.").
Defendants had until September 13, 2001 to file a notice of
appeal, see Fed.R.App.P. 4(a)(1)(A), and 30 additional days
to file a motion for extension of time, see Fed.R.App.P.
4(a)(5)(A). As of September 10, 2001, no notice of appeal had
been filed, nor had any motion for an extension of time been
filed prior to the present motion.
Due to the tragic events in New York City on September 11,
2001, Corporation Counsel, whose office was in close proximity
to the World Trade Center disaster, lost access to its office,
files and computers. Access was not regained until October 19,
2001. On October 23, 2001, defendants filed this motion.*fn1
Plaintiff has not opposed the motion.
Rule 60(b) of the Fed.R.Civ.P. allows a court to withdraw a
judgment or order for a number of reasons, including: "(1)
mistake, inadvertence, surprise, or excusable neglect; . . . or
(6) any other reason justifying relief from the operation of the
judgment." The defendants assert
that if the Court were to withdraw and refile its Memorandum and
Order this would reset the notice of appeal clock. They are
incorrect. Rule 60(b) is not an appropriate procedural mechanism
to re-file a substantively identical order for the purpose of
allowing a party to circumvent the time requirements of Fed.
R.App.P. 4(a). See Cody, Inc. v. Woodbury, 179 F.3d 52, 55
(2d Cir. 1999) ("[W]hen a second judgment in a case does not
differ from the first judgment in a matter affecting the
substantive rights of the parties, the time to appeal runs from
the first judgment.").
Turning to Fed.R.App.P. 4(a)(5), the timeliness requirements
of Rule 4(a) are jurisdictional. See Endicott Johnson Corp. v.
Liberty Mutual Ins. Co., 116 F.3d 53, 56 (2d Cir. 1997) ("If a
notice of appeal is filed beyond the period allowed in Fed.
R.App.P. 4(a), the court of appeals lacks subject matter
jurisdiction . . . that defect is not cured by a purported
agreement between or among the parties.").
Although under Rule Fed.R.App.P. 4(a)(5)(A) a "district
court may extend the time to file a notice of appeal if . . . a
party so moves no later than 30 days after the time prescribed
by Rule 4(a) expires", the moving party must show "excusable
neglect or good cause." It is beyond dispute that the events of
September 11, 2001 and the subsequent inaccessibility of the
Corporation Counsel office constitute excusable neglect and good
cause; however, because the motion was filed beyond the 30 day
grace period — which expired on October 15, 2001 — the Court
cannot grant the extension merely upon this showing. See Fed.
The Court, however, may permit the filing of a notice of
appeal after the expiration of the 30 day grace period under the
judicially created "unique circumstances" doctrine. See
Thompson v. INS, 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404
(1964). In Osterneck v. Ernst & Whitney, the Supreme Court
made clear that "Thompson applies only where a party has
performed an act which, if properly done, would postpone the
deadline for filing his appeal and has received specific
assurance by a judicial officer that this act has been properly
done." 489 U.S. 169, 179, 109 S.Ct. 987, 103 L.Ed.2d 146 (1989).
The Second Circuit has applied the "unique circumstances"
doctrine only to the narrow factual scenario set forth in
Thompson and Osterneck. See Litchtenberg v. Besicorp Group.
Inc., 204 F.3d 397, 402-403 (2d Cir. 2000). Thompson and
Osterneck do not here provide a basis for allowing a late
filing since the defendants have not been misled by a judicial
The Court is aware that neither the Supreme Court nor the
Second Circuit has extended the "unique circumstances" doctrine
beyond the bounds of Thompson and Osterneck. See, e.g.,
Rezzonico v. H & R Block Inc., 182 F.3d 144, 151 (2d Cir.
1999). However, the events of September 11, 2001 were "unique"
in every sense of the word, and clearly beyond what any court
could previously have anticipated. The Court is confident that
the facts of this case support an extension of the "unique
circumstances" doctrine to afford the defendants an appropriate
opportunity to appeal. At the time of the World Trade Center
disaster, defendants had three more days to file their notice of
appeal; accordingly, the Court will permit defendants to file
their notice of appeal by December 20, 2001.*fn2