On November 25, 2024, the Court of Appeals issued a decision in Ruisech v. Structure Tone Inc., 2024 NY Slip Op. 05866, holding that service of a Notice of Entry through NYSCEF on the trial court’s docket starts the time to move in response to an Appellate Division order, explaining:
CPLR 5513 (b) provides that a motion for leave to appeal must be made within 30 days of the date of service by a party upon the party seeking permission of a copy of the judgment or order to be appealed from and written notice of its entry. Where the Appellate Division has already denied a timely motion for permission to appeal the judgment or order, a subsequent motion for leave to appeal must be made within 30 days of service of a copy of the order denying permission and written notice of its entry. We evaluate timeliness for purposes of CPLR 5513 (b) on a party-by-party basis. Thus, an untimely motion must be dismissed as against that party.
To be effective to start CPLR 5513 (b)’s 30-day clock, service must comply with CPLR 2103. CPLR 2103(b)(7), in turn, empowers the Chief Administrative Judge to authorize electronic service. The Chief Administrative Judge has exercised this authority by promulgating Uniform Rules for Trial Courts, which provides that in actions—such as this one—that are subject to electronic filing, parties may serve notice of entry of an order by filing a copy of the order and written notice of its entry on its New York State Courts Electronic Filing System (NYSCEF) site, thus causing that site to transmit notification of receipt of the documents, which shall constitute service thereof by the filer. The relevant rules are not limited to service of trial court orders; and they neither prohibit nor render ineffective service of an intermediate appellate court order with notice of its entry by filing on the trial court’s NYSCEF docket—as opposed to the NYSCEF docket of the intermediate appellate court. Thus, in an electronic filing case, service via filing on the NYSCEF docket for the trial court is effective to start CPLR 5513 (b)’s 30-day clock.
Here, plaintiffs moved for leave to appeal before this Court 31 days after defendant Structure Tone Inc. (Structure Tone) served plaintiffs by filing on the trial court’s NYSCEF docket. Plaintiffs’ motion to this Court was therefore untimely as to Structure Tone and, consequently, the portion of the motion to dismiss the appeal as against Structure Tone should be granted. However, as to defendants 200 Park, LP (200 Park), Tishman Speyer Properties, L.P. (Tishman), and CBRE, Inc. (CBRE), the motion was timely.
(Internal quotations and citations omitted).