Meyer v. Meyer
| Decision Date | 20 June 1996 |
| Citation | 228 A.D.2d 955,645 N.Y.S.2d 105 |
| Parties | Renee MEYER, Appellant, v. Stephen MEYER, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Kenneth Ross Wolfe, Garden City, for appellant.
Marshall S. Goldman, White Plains, for respondent.
Before MIKOLL, J.P., and MERCURE, CREW, CASEY and YESAWICH, JJ.
Appeals (transferred to this court by order of the Appellate Division, Second Department) (1) from an amended judgment of the Supreme Court (Silverman, J.) granting, inter alia, a divorce, entered July 26, 1994 in Westchester County, upon a decision of the court, (2) from an order of said court, entered May 11, 1995 in Westchester County, which, inter alia, denied plaintiff certain postjudgment relief, (3) from an order of said court, entered February 15, 1995 in Westchester County, which, inter alia, directed entry of a second amended judgment of divorce and denied plaintiff certain postjudgment relief, and (4) from a second amended judgment of said court granting, inter alia, a divorce, entered May 11, 1995 in Westchester County, upon a decision of the court.
Plaintiff's appeal from the amended judgment must be dismissed as untimely. Plaintiff contends that her notice of appeal, which is dated March 21, 1995, was filed within 30 days of service of the amended judgment with notice of entry (see, CPLR 5513[a] ), but the record establishes that service with notice of entry occurred no later than November 1994.
After a trial of the issues in this matrimonial action, Supreme Court issued a written decision containing the relevant findings of fact. The parties apparently submitted proposed judgments and Supreme Court signed the judgment submitted by defendant. Plaintiff thereafter moved to amend the judgment to correct certain errors so that the judgment would accurately reflect the findings and conclusions contained in the court's decision. Supreme Court granted the motion and an amended judgment was entered by the court in July 1994. There is nothing in the record to demonstrate that defendant ever served a copy of the amended judgment with notice of entry on plaintiff. In November 1994, however, plaintiff moved for various postjudgment relief. Attached to her motion papers, which were clearly served on defendant, was a copy of the amended judgment stamped with the date of its entry. We conclude that this service by plaintiff on defendant was sufficient to trigger the 30-day period to take an appeal for both parties (see, CPLR 5513[a]; see also, Siegel, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR 5513:2, at 171-172).
Plaintiff's appeal from the amended judgment is untimely for a second reason. The corrections embodied in the amended judgment did not effectively result in a new determination, for the purpose of the corrections was to accurately reflect the original determination made by Supreme Court in its decision. In addition, none of the corrections involved any of the issues that plaintiff seeks to raise in her appeal from the amended judgment. In these circumstances, the time to appeal must be measured from the original judgment (see, Kitchen v. Port Auth. of N.Y. & N.J., 221 A.D.2d 195, ----, 633 N.Y.S.2d 167, 168), which concededly renders the appeal untimely.
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