Wednesday, March 31, 2010

Filing a Timely Notice of Appeal

One of the fundamental rules of appellate practice is that the timely filing of a notice of appeal is a jurisdictional requirement: if the notice of appeal is filed late, an appellate court has no jurisdiction over the matter, and the appeal will be dismissed.

On Monday, the United States Court of Appeals for the Second Circuit reminded us of the basic rule when it dismissed the appeal in Napoli v. Town of New Windsor. The decision can be found here.

For appeals in the New York State courts the time to file the notice of appeal is laid out in CPLR § 5513. The time frame for appeals in federal court is stated in Rule 4 of the Federal Rules of Appellate Practice. Note that Rule 4(a) states the time for civil appeals, while Rule 4(b) states a different time for criminal appeals.

In federal court a problem arises when the a judgment is entered and later amended. Does the filing of an amended judgment reset the clock for filing the notice of appeal? See e.g., Rezzonico v. H & R Block, Inc., 182 F.2d 144 (2nd Cir. 1999).

In the Napoli decision on Monday, the Second Circuit stated that because rulings a district judge made after issuing an order subject to an interlocutory appeal did not reset the clock for appealing the order, the notice of appeal was late and the appeal would be dismissed.

Appeals should be decided on their merits: file a timely notice of appeal.

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