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Rubin Law, PLLC v. Tingling

Supreme Court, New York County

June 24, 2016

Rubin Law, PLLC, Petitioner
v.
Hon. Milton A. Tingling as Clerk of New York County, Respondent.

          For Petitioner Denise A. Rubin Esq. Rubin Law, PLLC.

          For Respondent Lisa M. Evans, Assistant Deputy Counsel New York State Unified Court System Office of Court Administration.

          Lucy Billings, J.

         I. CANTRELL V. GENERAL SECURITY, INC.

         In an order dated December 24, 2014, the court (Hagler, J.) in Cantrell v. General Security, Inc., Index No. 159840/2013 (Sup. Ct. NY Co.), dismissed the action based on an inconvenient forum. C.P.L.R. § 327(a). Petitioner law firm in this proceeding represents the plaintiff Cantrell in that action. As of the hearing on this petition, Cantrell had not commenced an action in the alternative forum, but was still within the limitations period to do so.

         On December 24, 2014, a Supreme Court clerk, Lisa White, filed the order in the New York Supreme Court Electronic Filing (NYSCEF) system, listed as "Filed: New York County Clerk, " as are all documents filed in the NYSCEF system, whether orders or not. V. Pet. Ex. B. The defendants served notice of entry of the order on Cantrell's attorney, petitioner here, December 30, 2014, thus notifying petitioner and Cantrell that the order was entered December 24, 2014.

         On January 16, 2015, the same order was filed again in the NYSCEF system, this time listed as "ENTERED IN THE OFFICE OF THE COUNTY CLERK ON JANUARY 16, 2015, " id. Ex. D, which the defendants also served on petitioner with notice of entry. Cantrell filed a timely notice of appeal from this notice of entry, but her notice of appeal was not timely from the notice of entry served December 30, 2014. Consequently, the Appellate Division, First Department, dismissed Cantrell's appeal as untimely, thus finding the order filed December 24, 2014, and served with notice of entry December 30, 2014, to have been duly entered by the New York County Clerk. 22 N.Y.C.R.R. § 202.5-b(h)(1); Cantrell v. General Sec., Inc., 2015 WL 3459083 (1st Dep't June 2, 2015).

         II. RESPONDENT'S DELEGATION OF HIS AUTHORITY IN 2015

         According to petitioner, respondent, the New York County Clerk as of January 2015, admitted to petitioner June 25, 2015, that respondent himself had not delegated his exclusive authority to enter Supreme Court orders to either of the persons who filed the order in Cantrell v. General Security December 24, 2014, or January 16, 2015. If the Supreme Court clerk Lisa White who filed the order December 24, 2014, was unauthorized to enter it, but the person who filed it January 16, 2015, was authorized to enter it, Cantrell's appeal was timely. On the other hand, if this latter person also was unauthorized, petitioner seeks to mandate respondent to enter the order now, so Cantrell then may appeal timely from that entry.

         Based on the account petitioner obtained from respondent, Cantrell moved to renew or reargue the defendants' motion to dismiss her appeal. See 22 N.Y.C.R.R. § 600.14(a). Respondent's knowledge, however, and consequently his report to petitioner extended only to his delegation of authority in 2015 and not to any delegation of authority by his predecessor in office through December 31, 2014. The Appellate Division did not find this new evidence grounds to disturb the dismissal of Cantrell's appeal and denied her motion for renewal or reargument. Cantrell v. General Sec., Inc., 2015 WL 7729307 (1st Dep't Dec. 1, 2015).

         III. THE NEW YORK COUNTY CLERK'S DELEGATION OF HIS AUTHORITY BEFORE 2015

         C.P.L.R. § 2220(a) requires that: "An order determining a motion shall be entered and filed in the office of the clerk of the court..., " referring to the County Clerk. 22 N.Y.C.R.R. § 202-b(h)(1) provides that in the NYSCEF system "the County Clerk or his or her designee shall file orders and judgments of the court electronically, which shall constitute entry of the order or judgment. The date of entry shall be the date on which transmission of the order or judgment is recorded at the NYSCEF site." Thus, for any persons other than the County Clerk himself to enter Supreme Court orders, those persons must have received the County Clerk's designation to do so, particularly when they are not even employed by the County Clerk, but are employed by the Supreme Court.

         Nothing requires that the County Clerk's designation of persons to file or enter orders be in writing. While New York County Law § 526(1) and Public Officers Law § 9 require the County Clerk's appointment of Deputy Clerks to be in "a writing filed and recorded in his office, " NY County Law § 526(1), that appointment is to perform his various duties and exercise all his powers during his absence or incapacity, not to perform the single duty of entering orders and judgments.

         Part of the relief petitioner sought was the opportunity to obtain evidence whether respondent's predecessor designated any persons, particularly Supreme Court employees, to file and enter orders electronically. Therefore at the hearing on the petition the court permitted plaintiff to examine Jeffrey Carucci, First Deputy Chief Clerk of the Supreme Court, New York County, Civil Division, and Statewide Coordinator of the New York State E-Filing System. His affidavit in opposition to the petition attested that as of December 24, 2014, "employees of the court had been ...


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