United States District Court, S.D. New York
September 15, 2004.
KERWIN JOHNSON, Plaintiff,
PHILLIP COOMBE, JR., et al., Defendants.
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
By order dated August 3, 2004, the Court of Appeals dismissed
plaintiff's appeal but remanded this case for a determination as
to whether language in the notice of appeal may be construed as a
motion for an extension of time to file a notice of appeal.
The notice of appeal itself contains no such language. It was
accompanied, however, by a document advising that the notice of
appeal was delayed due to circumstances beyond the plaintiff's
control. This document sought to excuse the belated filing of the
notice of appeal and thus implicitly sought relief from the
rigors of the 30 day time limit. The Court therefore construes it
as a motion for an extension of time within which to file the
notice of appeal. See Campos v. LeFevre, 825 F.2d 671, 676 (2d
As the "motion" was filed within 30 days after the time
prescribed for the filing of the notice of appeal, the Court has
the power to grant an extension until the later of 30 days after
the prescribed time or 10 days after the date when the order
granting the motion is entered. Fed.R. App. P. 4(a)(5).
Accordingly, the motion is granted and the time for filing the
notice of appeal is extended to and including the 10th day after
the date on which this order is entered.
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