FIRST FRANKLIN FINANCIAL CORPORATION V WILLIAM NORTON ALSO KNOWN AS WILLIAM A. NORTON NEW YORK STATE DEPARTMENT OF

FIRST FRANKLIN FINANCIAL CORPORATION V WILLIAM NORTON ALSO KNOWN AS WILLIAM A. NORTON NEW YORK STATE DEPARTMENT OF

Motion No: CA 14-00879

Slip Opinion No: 2014 NY Slip Op 74730(U)

Decided on June 5, 2014

Appellate Division, Fourth Department, Motion Decision

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This motion is uncorrected and is not subject to publication in the Official Reports.

June 5, 2014

PRESENT: SCUDDER, P. J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.

DOCKET NO. CA 14-00879

FIRST FRANKLIN FINANCIAL CORPORATION, PLAINTIFF-APPELLANT,
V
WILLIAM NORTON ALSO KNOWN AS WILLIAM A. NORTON,
DEFENDANT-RESPONDENT, NEW YORK STATE DEPARTMENT OF TAXATION
AND FINANCE, ET AL., DEFENDANTS.

Respondent having moved to dismiss the appeal taken herein from an order of the Supreme Court entered in the Office of the Clerk of the County of Chautauqua on June 6, 2012, on the grounds that appellant failed to take timely the appeal pursuant to CPLR 5513 and 22 NYCRR 1000.3 (a) and that appellant failed to properly substitute counsel as attorney of record pursuant to CPLR 321 (b),

Now, upon reading and filing the affidavit of Marco Cercone, Esq., sworn to May 15, 2014, the affidavit of Arthur N. Bailey, Esq,. sworn to May 13, 2014, the notice of motion with proof of service thereof, the affidavit of John A. Cirando, Esq., sworn to May 22, 2014, and the affidavit of David Case, Esq., sworn to May 21, 2014, and due deliberation having been had thereon,

It is hereby ORDERED that the motion is denied, insofar as it seeks to dismiss the appeal as untimely pursuant to CPLR 5513 and 22 NYCRR 1000.3 (a), because it fails to demonstrate that respondent served appellant with both a copy of the order entered June 6, 2012, and valid notice of entry meeting the technical requirements sufficient to trigger the 30-day time period set forth in CPLR 5513 (a) (cf. Matter of Reynolds v Dustman, 1 NY3d 559), and

It is further ORDERED that the motion is denied, insofar as it seeks to dismiss the appeal for failure to properly substitute counsel as attorney of record pursuant to CPLR 321 (b),

because it fails to demonstrate that the notice of appeal is a nullity (see Mack v Edell, 1 AD2d 937; Mechanic's Laundry Co. v Christopher, 286 AD 956; Rakha v Pinnacle Bus Servs., 98 AD3d 657, 658-659; Martin v Chase & Sons, 119 AD2d 888; Hendry v Hilton, 283 AD 168, 172; Gradl v Saulpaugh, 268 AD 787).

Entered: June 5, 2014

Frances E. Cafarell, Clerk