M Entertainment, Inc. v. Leydier ( 2009 )

Judgment, Supreme Court, New York County (Karen S. Smith, J.), entered November 27, 2007, to the extent it dismissed the complaint as against defendants Wardrop and Thompson, unanimously affirmed, and appeal, to the extent it dismissed the complaint as against defendant Leydier, dismissed, without costs. Appeal from amended order, same court and Justice, entered on or about October 17, 2007, which, after a nonjury trial, directed entry of a judgment dismissing the complaint, unanimously dismissed as subsumed in appeal from judgment, and, with respect to plaintiffs claims against Leydier, dismissed for failure to obtain appellate jurisdiction, without costs.

An appeal as of right must be taken within 30 days after service by a party upon the appellant of a copy of the judgment or order appealed from, with notice of entry (CPLR 5513 [a]). An appellant takes such an appeal by serving upon adverse parties a notice of appeal, and filing same with the clerk of the court in which the judgment or order has been entered (CFLR 5515 [1]). Where applicable, CFLR 2103 (b) (2) provides for service of papers upon an attorney by mailing to the address designated for that purpose. “Mailing,” under the statute, requires the deposit of those papers “in a post office or official depository under the exclusive care and custody of the United States Fostal Service within the state” (CFLR 2103 [f] [1] [emphasis added]). It is undisputed that plaintiffs, who opted for service by mail, did not place the notice of appeal to be served upon Leydier in a post office or depository within this State. Accordingly, the notice of appeal is of no effect with respect to Leydier because service was not completed within the meaning of CPLR 2103 (see Cipriani v Green, 96 NY2d 821 [2001]; National Org. for Women v Metropolitan Life Ins. Co., 70 NY2d 939 [1988]). We note that the Third Department has excused late service of a notice of appeal upon a showing of mistake or excusable neglect (Peck v Ernst Bros., 81 AD2d 940 [1981]), but the Court of Appeals has categorically held that “[t]he power of an appellate court to review a judgment is subject to an appeal being timely taken” (Hecht v City of New York, 60 NY2d 57, 61 [1983]). We thus find plaintiffs’ improper service of their notice of appeal upon Leydier to be a fatal jurisdictional defect.

The evidence supports the trial court’s finding that defendants Wardrop and Thompson did not fraudulently induce plaintiffs to enter into the memorandum of understanding or the licensing agreement that are the subjects of this lawsuit. These defendants were not parties to either agreement, nor did plaintiffs pay them anything in connection with the subject transaction. The record shows that these defendants’ involvement consisted of the presence of Thompson and the CEO of Wardrop’s affiliate at two meetings between plaintiffs and Leydier, Leydier’s use of Wardrop’s boardroom for one of those meetings, and Thompson’s presentation of his business cards to plaintiffs, identifying himself as a principal of the Wardrop affiliate. Contrary to plaintiffs’ contentions, Wardrop did nothing to give rise to the appearance and belief that Leydier or Thompson possessed authority to enter into a transaction with plaintiffs on its behalf, and to the extent that Leydier and/or Thompson made such representations, the words or conduct of a putative agent are insufficient to create apparent authority (see Hallock v State of New York, 64 NY2d 224, 231 [1984]).

We have considered plaintiffs’ remaining contentions and find them without merit. Concur—Andrias, DeGrasse and Richter, JJ.