| Dokaj v Ruxton Tower Ltd. Partnership |
| 2008 NY Slip Op 07859 [55 AD3d 662] |
| October 14, 2008 |
| Appellate Division, Second Department |
| Don Dokaj et al., Appellants, v Ruxton Tower LimitedPartnership et al., Respondents. (And a Third-Party Action.) |
—[*1] Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, N.Y. (Marcia Raicus andJoel M. Simon of counsel), for respondents Ruxton Tower Limited Partnership, Jeffrey B. Lewis, andEric D. Rosenfeld. Costello, Shea & Gaffney, LLP, New York, N.Y. (Frederick N. Gaffney and Sooyung T.A. Leeof counsel), for respondent Armor Kone Elevator, Inc., sued herein as Armor Kone Elevator Co.,Inc.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of theSupreme Court, Queens County (Schulman, J.), entered September 27, 2005, which denied theirmotion for leave to file a note of issue.
Separate motions by the respondents to dismiss the appeal on the ground that the appeal wasuntimely taken. By decision and order on motion of this Court dated April 9, 2008, the motions wereheld in abeyance and referred to the Justices hearing the appeal for determination upon the argument orsubmission thereof.
Upon the papers filed in support of the motions and the papers filed in opposition thereto, and uponthe argument of the appeal, it is,
Ordered that the motions are granted; and it is further,[*2]
Ordered that the appeal is dismissed, without costs ordisbursements (see CPLR 5513 [a]).
Service by the appellants upon the respondents of certain motion papers, which included a copy ofthe order appealed from stamped with the date of its entry and an affirmation by an attorney in supportof the motion referring to that order, was sufficient to trigger the 30-day period to take an appeal(see CPLR 5513 [a]; Matter ofXander Corp. v Haberman, 41 AD3d 489, 490 [2007]; Meyer v Meyer, 228 AD2d955, 956 [1996]). As the motion papers were served on January 6, 2006, and a notice of appeal fromthe order was filed no earlier than January 22, 2008, the appeal from that order was untimely taken andwe grant the respondents' motions to dismiss the appeal (see CPLR 5513 [a]; Matter ofXander Corp. v Haberman, 41 AD3d at 490). Skelos, J.P., Covello, Balkin and Dickerson, JJ.,concur.