| People of State of New York v Mitchell A. Schwartz |
| Motion No: 2021-00833 SC |
| Slip Opinion No: 2022 NY Slip Op 73140(U) |
| Decided on October 4, 2022 |
| Appellate Term, Second 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. |
of the State of New York for the 9th & 10th Judicial Districts
JERRY GARGUILO, P.J.
ELIZABETH H. EMERSON
TIMOTHY S. DRISCOLL, JJ.
DECISION & ORDER ON MOTION
| The People of the State of New York, Plaintiff, v Mitchell A. Schwartz, Defendant. |
Motion by defendant to file a late notice of appeal.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
ORDERED that the motion is denied as academic.
While it is not clear what paper is being appealed in this matter, the case involves a violation of Vehicle and Traffic Law § 1174-a, which is civil in nature, not criminal (see People v Bowman, 62 Misc 3d 41 [App Term, 2d Dept, 9th & 10th Jud Dists 2018]). The time to take a civil appeal as of right runs from the "service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry" (CPLR 5513 [a]). On this record, there is no indication that defendant was ever served with the paper being appealed from with notice of entry and therefore no indication that defendant's time to take an appeal has commenced. Thus, defendant's motion is denied as academic.
It is noted that, in a civil case, "[t]he time period for filing a notice of appeal is nonwaivable and jurisdictional" (Jones Sledzik Garneau & Nardone, LLP v Schloss, 37 AD3d 417, 417 [2007]).
ENTER:
Paul Kenny
Chief Clerk