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M Entertainment, Inc. v. Leydier

May 28, 2009


Judgment, Supreme Court, New York County (Karen S. Smith, J.), entered November 27, 2007, to the extent it dismissed the complaint as against defendants Wardrop and Thompson, unanimously affirmed, and appeal, to the extent it dismissed the complaint as against defendant Leydier, dismissed, without costs. Appeal from amended order, same court and Justice, entered on or about October 17, 2007, which, after a non-jury trial, directed entry of a judgment dismissing the complaint, unanimously dismissed as subsumed in appeal from judgment, and, with respect to plaintiff's claims against Leydier, dismissed for failure to obtain appellate jurisdiction, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Andrias, Buckley, DeGrasse, Richter, JJ.


An appeal as of right must be taken within 30 days after service by a party upon the appellant of a copy of the judgment or order appealed from, with notice of entry (CPLR 5513[a]). An appellant takes such an appeal by serving upon adverse parties a notice of appeal, and filing same with the clerk of the court in which the judgment or order has been entered (CPLR 5515[1]). Where applicable, CPLR 2103(b)(2) provides for service of papers upon an attorney by mailing to the address designated for that purpose. "Mailing," under the statute, requires the deposit of those papers "in a post office or official depository under the exclusive care and custody of the United States Postal Service within the state (CPLR 2103[f][1], [emphasis added]). It is undisputed that plaintiffs, who opted for service by mail, did not place the notice of appeal to be served upon Leydier in a post office or depository within this State. Accordingly, the notice of appeal is of no effect with respect to Leydier because service was not completed within the meaning of CPLR 2103 (see Cipriani v Green, 96 NY2d 821 [2001]; National Org. for Women v Metropolitan Life Ins. Co., 70 NY2d 939 [1988]). We note that the Third Department has excused late service of a notice of appeal upon a showing of mistake or excusable neglect (Peck v Ernst Bros., 81 AD2d 940 [1981]), but the Court of Appeals has categorically held that the power of an appellate court to review a judgment is subject to an appeal being timely taken" (Hecht v City of New York, 60 NY2d 57, 61 [1983]). We thus find plaintiffs' improper service of their notice of appeal upon Leydier to be a fatal jurisdictional defect.

The evidence supports the trial court's finding that defendants Wardrop and Thompson did not fraudulently induce plaintiffs to enter into the memorandum of understanding or the licensing agreement that are the subjects of this lawsuit. These defendants were not parties to either agreement, nor did plaintiffs pay them anything in connection with the subject transaction. The record shows that these defendants' involvement consisted of the presence of Thompson and the CEO of Wardrop's affiliate at two meetings between plaintiffs and Leydier, Leydier's use of Wardrop's board room for one of those meetings, and Thompson's presentation of his business cards to plaintiffs, identifying himself as a principal of the Wardrop affiliate. Contrary to plaintiffs' contentions, Wardrop did nothing to give rise to the appearance and belief that Leydier or Thompson possessed authority to enter into a transaction with plaintiffs on its behalf, and to the extent that Leydier and/or Thompson made such representations, the words or conduct of a putative agent are insufficient to create apparent authority (see Hallock v State of New York, 64 NY2d 224, 231 [1984]).

We have considered plaintiffs' remaining contentions and find them without merit.

All concur except Tom, J.P. and Buckley, J. who dissent in part in a memorandum by Tom, J.P. as follows:

TOM, J.P. (dissenting in part)

The majority deprives plaintiffs of the opportunity to appeal as of right the dismissal of their claims against defendant Leydier without engaging in any analysis of the law and equities. Moreover, the cases relied upon in support of dismissal offer no guidance on the jurisdictional issue the majority resolves against plaintiffs.

It is Leydier's position that because a notice of appeal is deposited into a mailbox located outside, rather than within New York State, this Court is jurisdictionally barred from entertaining that party's appeal as of right against the recipient of the notice. The two cases he relies upon to support this result state, in the entirety and in virtually identical language:

"Motion for leave to appeal dismissed as untimely. Service was not completed within the meaning of CPLR 2103(b)(2) by the mailing in Washington, D.C. The statute provides for mailing 'within the state'" (National Org. for Women v Metropolitan Life Ins. Co., 70 NY2d 939 [1988]; see also Cipriani v Green, 96 NY2d 821 [2001] [Nevada mailing]).

Neither of these rulings suggests that the basis for the Court's disposition is jurisdictional. Both cases involve whether to grant permission to appeal, an application addressed to the Court's discretion (see Matter of Newman v Gordon, 31 NY2d 676 [1972]; American Banana Co. v Venezolana Internacional de Aviacion S.A. [VIASA], 69 AD2d 762 [1979]), and reflect no more than the Court of Appeals' disinclination to excuse a procedural irregularity in the exercise of a discretionary function (CPLR 2001; see e.g. Matter of Ancona, 17 AD3d 584 [2005] [pro hac vice]). The decisions do not state, as Leydier urges, that the movant's deviation from the manner of service prescribed by statute defeats the Court's appellate jurisdiction.

Generally, the failure to comply with a provision for service of papers can be disregarded in the absence of substantial prejudice to the right of a party (see e.g. Matter of Brown v Casier, 95 AD2d 574, 577 [1983] [failure to serve petition 20 days before return date]). Significantly, Leydier identifies no prejudice incurred by him as a result of the disputed irregularity in service and concedes that he timely received plaintiffs' notice of appeal, which was duly filed within the time prescribed by statute (CPLR 5515[1]). Thus, there is no question that the appeal was seasonably brought, ...

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