Legal Question in Civil Litigation in New York
Notice of Appeal
I am a plaintiff pro se litigating in the Civil Court in Kings County. Defendant's counsel in my case filed a Motion to Dismiss instead of an Answer to my S&C. I defended that, and defendant was given 30 days from the date of the Decision/Order to Answer. He failed to do so and I filed a Request for an inquest. Now, two days before the Inquest, and more than a month after the Answer was due, defendant sent me an Answer and a Notice of Appeal for that Decision/Order. Firstly, didn't his time to appeal also run out, and secondly, what do I do now? Any information and advice would be greatly appreciated.
Thanking you in advance.
3 Answers from Attorneys
Re: Notice of Appeal
Time to appeal runs from the date the order was served with Notice of Entry and is 30 days.
YOU DONT HAVE TO ACCEPT THE ANSWER IF IT IS LATE, GO AHEAD WITH INQUEST.
DEFENDANT must open his default.
Re: Notice of Appeal
Argue that the appeal was untimely. However, I doubt that the judge will find that the defendant defaulted. That is just the way business is done in Kings County my friend.
Re: Notice of Appeal
If you failed to serve Notice of Entry, his time to serve a Notice of Appeal did not run. Therefore, he has the legal right to file the Notice of Entry and Appeal.
However, a Notice of Appeal does not stay a legal proceeding unless either (1) the proceeding is automatically stayed under statute or (2) a court grants an order staying the proceeding. Assuming there is not an automatic stay and there is no order staying the action, you must be ready for the inquest. It would be the Court's decision to conduct the inquest.
Mike.
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