Petitioner Denise A. Rubin Esq. Rubin Law, PLLC.
Respondent Lisa M. Evans, Assistant Deputy Counsel New York
State Unified Court System Office of Court Administration.
CANTRELL V. GENERAL SECURITY, INC.
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.
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
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).
RESPONDENT'S DELEGATION OF HIS AUTHORITY IN 2015
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
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.
THE NEW YORK COUNTY CLERK'S DELEGATION OF HIS
AUTHORITY BEFORE 2015
§ 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.
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.
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 ...