CPLR 5520 in action

Key Takeaway

Filing and service are separate acts. This 2011 motion decision concerns a timely filed notice of appeal and relief for a service error—not a blanket extension of the appeal deadline. Read the order.

Last reviewed: September 2026 (editorial source check). Originally published July 21, 2011. The original commentary below is separate from the later editorial context.

The 2011 case: a timely filing, a service problem

Ortho Products & Equipment, Inc. v Interboro Insurance Co., 2011 NY Slip Op 78861(U), was decided July 18, 2011 by the Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts.

Interboro sought time to serve its notice of appeal and a stay. The notice had been filed on time. The challenged Civil Court order was entered December 16, 2010; the motion decision identifies appeal number 2011-551 K C.

What the court granted—and what it did not decide

The court granted relief under CPLR 5520(a) and deemed the notice timely served. It also granted a stay, conditioned on perfecting the appeal by October 7, 2011. The order records no opposition papers.

That October date was a condition in this particular order. It is not a reusable deadline for a later appeal. The order also warned that failure to perfect could lead to dismissal.

The underlying defenses appear in Jason’s note below. This motion order does not decide whether those defenses succeed. Preserving an appeal and winning it are different outcomes.

Jason’s original commentary: July 2011

The following is the original first-person note, with paragraph breaks added. The case summary and later context elsewhere on this page are editorial additions.

Somebody – namely me – served a notice of appeal on the wrong attorney, yet timely filed the said notice of appeal. CPLR 5520(a) to the rescue…

Underlying defense? EUO no-show and lack of medical necessity. And – a stay was also granted.

This is why the note is worth keeping: it records a practitioner’s service mistake and the procedural relief that followed, rather than offering an abstract list of appellate rules.

Later context: the distinction still matters

The text of CPLR 5520(a) starts with a timely act: service or filing. If another required act is omitted through mistake or excusable neglect, the statute permits a court to extend the time to cure it. Relief is discretionary.

A later example is Matter of Miller v Annucci, 37 NY3d 996 (2021), decided September 9, 2021. The Court of Appeals rejected the proposed rule that delivery to prison officials itself made the filing timely.

But untimely filing did not end the inquiry. The Court remitted for further proceedings concerning timely service and the possible exercise of discretion under CPLR 5520(a). It did not deem the appeal timely on the existing record.

Jason discussed that decision in his 2021 note on filing and service. Read the two notes together as different procedural examples, not as stages of the same lawsuit.

Reading a similar record

Before comparing a present matter with this note, identify the documents that establish:

• When the notice reached the proper clerk.
• When, how and on whom it was served.
• Which required act was omitted and why.
• The relief actually requested and the conditions in any resulting order.

That checklist organizes the record; it does not calculate a deadline or establish entitlement to relief. Current procedural requirements and the applicable court’s rules need a separate review.

For the underlying insurance context, see our no-fault defense practice. The legal encyclopedia provides a route into related procedural topics.

For help reviewing a particular motion or appeal, request a Free Case Review. This historical note is educational, not legal advice for a pending matter.