Cmty. Hous. Improvement Program v. Comm'r Labor

• Decision Date: 01 November 2018
• Docket Number: 526211
• Citation: 166 A.D.3d 1135,88 N.Y.S.3d 254
• Parties: In the Matter of COMMUNITY HOUSING IMPROVEMENT PROGRAM, Appellant, v. COMMISSIONER OF LABOR, Respondent.
• Court: New York Supreme Court — Appellate Division

166 A.D.3d 1135
88 N.Y.S.3d 254

In the Matter of COMMUNITY HOUSING IMPROVEMENT PROGRAM, Appellant,
v.
COMMISSIONER OF LABOR, Respondent.

526211

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: September 5, 2018
Decided and Entered: November 1, 2018

88 N.Y.S.3d 255

Greenberg Traurig LLP, New York City (Jerrold F. Goldberg of counsel), for appellant.

Barbara D. Underwood, Attorney General, New York City (Seth Kupferberg of counsel), for respondent.

Before: McCarthy, J.P., Lynch, Clark, Mulvey and Rumsey, JJ.

MEMORANDUM AND ORDER

Rumsey, J.

Appeal from a decision of the Industrial Board of Appeals, filed March 24, 2017, which dismissed petitioner's application to review and set aside a portion of the amended minimum wage order issued by respondent for the building service industry.

This is a direct appeal, pursuant to Labor Law § 657(2), from a decision of the Industrial Board of Appeals (hereinafter IBA) dated March 24, 2017 that denied petitioner's application to review and set

88 N.Y.S.3d 256

aside a portion of a minimum wage order for the building service industry. Labor Law § 657(2) provides that an appeal from a decision of the IBA regarding wage orders must be taken directly to this Court within 60 days after the order is issued. Petitioner filed a notice of appeal with this Court on May 11, 2017 and served it by regular mail sent on May 10, 2017 to respondent's general counsel at an incorrect address.

As a threshold matter, we must consider respondent's argument that this Court lacks subject matter jurisdiction to entertain the appeal because petitioner failed to properly file or serve a notice of appeal.¹ "An appeal shall be taken by serving on the adverse party a notice of appeal and filing it in the office where the judgment or order of the court of original instance is entered" ( CPLR 5515[1] ). To properly bring an appeal, petitioner was required to complete both steps by timely filing a notice of appeal in the proper court and by serving it on respondent. Where only one of these steps is properly completed, the court has the discretion to "grant an extension of time for curing the omission" ( CPLR 5520[a] ).² Notably, however, "[a] complete failure to comply with CPLR 5515 deprives this Court of jurisdiction to entertain the appeal" ( Matter of Henry, 159 A.D.3d 1393, 1394, 73 N.Y.S.3d 316 [2018] [internal quotation marks and citations omitted]; see M Entertainment, Inc. v. Leydier, 13 N.Y.3d 827, 828–829, 891 N.Y.S.2d 6, 919 N.E.2d 177 [2009] ; AXA Equit. Life Ins. Co. v. Kalina, 101 A.D.3d 1655, 1657, 956 N.Y.S.2d 743 [2012] ; Matter of Johnson v....