Notice of Entry in Electronically Filed Cases

A Notice of Appeal must be filed and served within 30 days of the date the Order or Judgment being appealed is served with Notice of Entry (CPLR § 5513(a)). Of course, if the Order with Notice of Entry is served via regular mail, the Appellant receives an additional five days to serve and file a Notice of Appeal (CPLR § 2103).

However, if a case is e-filed, does the mere fact that the Order or Judgment being appealed is uploaded onto the New York State Courts Electronic Filing System (“NYSCEF”) constitute “service with Notice of Entry” and start the clock with respect to when a Notice of Appeal must be filed? In short, the answer is no.

According to the New York County Clerk Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases, “The County Clerk shall file decisions and orders, long form orders, and judgments electronically, which shall constitute entry thereof (Uniform Rule 202.5-b(h)1(1)), as will be reflected in a legend on the document. Upon e-filing, an email message will be transmitted immediately to all filing users on the case. . . . Such notice does notconstitute service of notice of entry by any party.” The directive continues that such Notice of Entry shall be served in the manner set forth by Uniform Rule 202.5-b(h)(3).

Said section reiterates that the mere appearance of an Order on the NYSCEF site does not constitute service of the Order with Notice of its Entry. It continues that “a party shall serve notice of entry of an order or judgment on another party by serving a copy of the order or judgment and written notice of its entry. A party may serve such documents electronically by filing them with the NYSCEF site and thus causing transmission by the site of notification of receipt of the documents, which shall constitute service thereof by the filer.” In the alternative, the Rule permits a party to serve written notice of entry of an order or judgment in hard copy by any method set forth in CPLR 2103(b)(1) through (6).

 

 

1  Emphasis in original.