Imagine you have perfected your appeal to the appellate division, served and filed your reply brief, and now approach the bench for oral argument. You are ready to dive into your presentation addressing several weighty issues of substantive law, when the first inquiry comes from the panel: “Counselor, has the order you are appealing from been filed and entered in the county clerk’s office?” Another justice immediately probes further, noting: “We see the supreme court justice signed an order that is on page 10 of the record, but there is no stamp from the county clerk’s office indicating it was filed and entered.”
Now you are back-pedaling. You gaze down at your outline for oral argument, but it does not address this seemingly picayune procedural matter. Then a third justice makes a pronouncement that sets your head reeling: “If this order was not properly filed and entered, we are required to dismiss your appeal.” You thank God that your client is not in the courtroom, but wonder how she will handle this news after having paid your $25,000 invoice for prosecuting the appeal.
A drama of this sort unfolded in a recent case before the Third Department, Merrell v. Sliwa, 156 A.D.3d 1186 (3d Dept 2017). The respondent named in the caption is Curtis Sliwa, the founder of the Guardian Angels, a group you may have seen conducting safety patrols in their red jackets and berets on the A Train. The memorandum decision in Merrell noted that “an appeal is not properly before this Court if the order appealed from ‘was not “entered and filed in the office of the clerk of the court where the action is triable”’.” Finding that the order was not filed or entered as required by CPLR 2220(a), the court dismissed the appeal.
New York’s civil procedure machinery is always capable of snatching defeat from the jaws of a potential victory, and often does so with heartless dispatch. Lawyers will confirm that, just as it is the case in baseball and soccer, small things can matter greatly in litigation. Seemingly menial tasks performed properly in the trenches of a lawsuit can help ensure that a well-fought victory on a matter is protected, or that a defeat can be challenged.
In the piece that follows, we will discuss filing, entry and service of the order. These steps are critical to the prevailing party because they give the order effect and set the stage for appellate review. As Merrell demonstrates, these steps are also essential to the aggrieved party who seeks to appeal from the order.
Obtaining an Order
“A motion is an application for an order.” CPLR 2211; see David D. Siegel & Patrick M. Connors, New York Practice §243 (6th ed. 2018). While a motion can generate a lengthy decision explaining in great detail why a movant is entitled to the relief sought, it is the order that is the critical paper needed to enforce that relief. See CPLR 2219(a) (requiring that “[t]he order shall be in writing”). While the order must conform strictly to the decision, the decision itself cannot be enforced, or even appealed. In New York practice, the general rule is that the only thing that may be appealed is a “judgment” or an “order.” See CPLR 5512(a); Siegel & Connors, New York Practice §524.
A court rule encourages that judges reduce their decisions to orders, but it does not require them to do so. See 22 N.Y.C.R.R. §202.8(g) (providing that “[u]nless the circumstances require settlement of an order, a judge shall incorporate into the decision an order effecting the relief specified in the decision”). This is designed to save the parties the need to draft and submit an order at all, making the decision itself serve also as the order whenever possible.
“Settle Order,” “Submit Order,” “Order Filed”
What does “settle order” mean? What does “submit order” mean? The lawyer should be familiar with these terms, so often met in motion practice. See Siegel & Connors, New York Practice §250. If the decision ends with “submit order” or similar words, this signifies that the winning party is to draw the order and submit it to the clerk for entry, with proof of service on all parties. If the decision says “settle order,” an alternative used for more complicated relief, the court is signifying that it wants the winning party to draft the order and to work out the proposed draft with the adverse party so that the latter can determine whether it also fits her understanding of the court’s decision. If the parties can agree, the order can be entered without trouble. If they can’t, a motion to settle must be made, and the court determines the form and content of the order. See 22 N.Y.C.R.R. § 202.48(c) (containing procedure for motion to settle).
When a decision directs that an order be “settled” or “submitted,” Uniform Rule 202.48 imposes a time limit of 60 days for its submission, running from the filing of the decision. See McKinney’s Practice Commentaries, CPLR 2220, C2220:3B. If the lawyer is not careful, a victory on a motion can be deemed abandoned for failure to comply with the 60-day rule.
Judges will sometimes conclude their decisions with language such as: “this constitutes the decision and order of the court,” or words of similar effect. See 22 N.Y.C.R.R. § 202.8(g). If the decision in a given case recites these words, it is also to be deemed the order, and the winner is under no obligation to draw and submit an order in these circumstances, rendering Uniform Rule 202.48(a)’s 60-day requirement inapplicable. See Funk v. Barry, 89 N.Y.2d 364 (1996); Siegel & Connors, New York Practice §250.
If the decision on the motion concludes with “order filed” or words to that effect, this usually signifies that the judge or clerk has drawn, filed and entered the order in the county clerk’s office. There is little left to do in that instance but for the winning party to obtain the order and serve it on all other parties with notice of entry, which is merely a notice that the order was entered on such-and-such date and place.
The Merrell Problem
In Merrell, the court did issue a written order dismissing the petition and expressly stated that it was transferring the motion papers to the county clerk and returning the original order to counsel for respondents, who were the prevailing parties in the special proceeding. Therefore, Uniform Rule 202.48(a)’s 60-day requirement was inapplicable, but the “Supreme Court notified the parties that the signing of the order did not constitute entry or filing or relieve them of the obligation to do so pursuant to CPLR 2220.” Merrell, 156 A.D.3d at 1187 n.1. While in many counties the county clerk may have taken the initiative and filed and entered the order, that did not occur in Merrell.
Ordinarily, an order is “filed” and “entered” at the same time, a practice so common that some lawyers think of the two steps as contemporaneous and consider both of them embraced under “entry.” In e-filed actions, the county clerk “or his or her designee shall file orders and judgments of the court electronically, which shall constitute entry of the order or judgment.” 22 N.Y.C.R.R. §202.5-b(h)(1). In actions not subject to e-filing, complications still arise in this realm, as the decision in Merrell amply demonstrates. See also Siegel & Connors, New York Practice §250 (discussing caselaw where orders were not properly filed and entered).
Service of the Order with Notice of Entry
CPLR 2220(b) requires “[s]ervice of an order,” and notes that service of a copy of an order will do. The prevailing party should make it a habit, promptly after filing the order and securing its entry, to serve a copy of it on all other parties with notice of the entry. “‘Where the rights of a party are or may be affected by an order, the successful moving party, in order to give validity to the order, is required to serve it on the adverse party.” Wells Fargo Bank, N.A. v. Frierson, 150 A.D.3d 1045, 1046 (2d Dept, 2017). The service of the order with notice of entry also starts the 30-day clock on a party’s right to appeal. See CPLR 5513(a); Siegel & Connors, New York Practice §533.
In Merrell, if we assume that the order was served with notice of entry, we can also surmise that the notice of entry was incorrect. Can an appellant rely on an opponent’s service of an order with notice of entry when serving and filing the notice of appeal as required by CPLR 5515(1)? We thought so, but after Merrell it will be a best practice for any party prosecuting an appeal to independently verify that the order or judgment being appealed has, in fact, been filed and entered in the county clerk’s office. That will be an easier task in an e-filed action.
The party serving the order with notice of entry must also take care. These items will qualify as “papers” and must be signed by the attorney serving them. See 22 N.Y.C.R.R. §130-1.1-a(a). The signature constitutes a “[c]ertification” that the papers and the contentions therein are not “frivolous.” Id. at §130-1.1-a(b). A paper is frivolous if “it asserts material factual statements that are false.” Id. at §130-1.1(c)(3). If a party perfects an appeal in reliance on an opponent’s service of an order with notice of entry, and that notice of entry is false, she may be entitled to an award of costs and/or sanctions if the appeal is dismissed. Id. at §130-1.1(a); see Siegel & Connors, New York Practice §414A.
Patrick M. Connors is the Albert and Angela Farone Distinguished Professor in New York Civil Practice at Albany Law School. He is the author of Siegel & Connors, New York Practice (6th ed. 2018).