SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
March 1, 2011
ALEX STARR DVM, AARON R. VINE DVM AND CENTRAL VETERINARY ASSOCIATES,
Appeal from a judgment of the District Court of Nassau County, Second District (Robert A. Bruno, J.), entered June 11, 2009.
Coogan v Starr
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on March 1, 2011
PRESENT: NICOLAI, P.J., MOLIA and LaCAVA, JJ
The judgment, after an inquest, dismissed the action.
ORDERED that the appeal is dismissed.
In this small claims action to recover damages for veterinary malpractice, plaintiff testified at an inquest that defendants' substandard treatment of her cat resulted in its death. Following the inquest, the District Court dismissed the action, and this appeal by plaintiff ensued.
Defendants assert that the appeal must be dismissed as untimely taken. "An appeal as of right from a judgment entered in a small claim . . . must be taken within thirty days of . . . service by the court of a copy of the judgment appealed from upon the appellant," and, where service is by mail, "five days shall be added to the thirty day period" (UDCA 1703 [b]). The record indicates that, on June 11, 2009, the District Court entered the judgment and mailed copies of the judgment to all parties. Plaintiff's notice of appeal was served upon defendants on October 21, 2009 and was filed with the District Court on October 22, 2009, more than 35 days after service of a copy of the judgment upon plaintiff. Accordingly, the appeal is dismissed as untimely taken.
Nicolai, P.J., Molia and LaCava, JJ., concur.
Decision Date: March 01, 2011
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