How Not To Serve Notice Of Entry By EFiling

Since eFiling started, there has been substantial confusion among attorneys as to the process of entering an order or judgment with the County Clerk, whether a Notice of Entry must be served and how to serve the Notice of Entry upon an adversary when a case is eFiled.

One change is that “In an action subject to e-filing, 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.” (not service of Notice of Entry) PART 202. Uniform Civil Rules For The Supreme Court And The County Court, Section 202.5-b(h)(1) Electronic Filing in Supreme Court; Consensual Program.

Upon entry of the order or judgment, NYSCEF immediately emails all parties with a link to the Court Order. If the clerk files the order a day later than the date stamped by the County Clerk, the date of entry will be the date shown on the filing stamp.

Table of Contents

Initial Confusion

Initially, some lawyers mistakenly believed that the entry of the order by the clerk constituted service upon their adversary since NYSCEF notified all parties by email that the Court Order was entered. After all, if the court notifies all parties that a Court Order was entered, what’s the point of serving a Notice of Entry? Whatever the reason, the Notice of Entry must still be served.

In Wallert v. Balance, 2012 WL 9517914 (2012), Defendants Ballance and Bluewater moved to reargue, pursuant to N.Y. Civ. PRAC. L. & R. § 2221, their motion to dismiss the amended complaint in an e-filed case. A motion to reargue must be made within 30 days of service of a copy of the order disposing of the motion with notice of entry. The plaintiff argued that the motion to reargue was untimely because it was served 32 days after the Prior Order was issued. The Court stated, “Plaintiff is incorrect.” The movants served the Prior Order with notice of entry by e-filing on the same day that they served the motion to reargue. The Court further stated, “Therefore, the motion was timely.”

The NYSCEF email contains the following warning:

“Receipt of this notification does not constitute service of the referenced order/judgment upon any party. See e-filing rules regarding service of an order/judgment with notice of entry, 202.5-b(h)(3).”

The warning in the email should have cleared up any lingering misunderstanding about whether the Notice of Entry must still be served.

Further Confusion

However, there remains another significant misunderstanding — How to serve the Notice of Entry in an eFile action?

Every lawyer I spoke with is under the belief that the Notice of Entry must be served in hard copy by mail as well as eFiling with NYSCEF. I am of the opinion that this will cause the undesired consequence of extending the time to file a Notice of Appeal by 35 days from the date of mailing and may result in needless motion practice if any party is unconvinced.

N.Y. Civ. Prac. L. & R. § 5513(a) provides that a Notice of Appeal is to be filed and served within thirty (30) days of service of a copy of the Order with Notice of Entry. N.Y. Civ. PRAC. L. & R. § 2103(b)(2) provides an additional five days to the time in which to file and serve a Notice of Appeal, where the Order with Notice of Entry is served by mail.

Service of a Hard Copy in Addition to e-Filing Would Defeat the Purpose of e-Filing

In Kim v Enterprise-Rent-A-Car, 2013 WL 6143339 (N.Y.Sup.), 2013 N.Y. Slip Op. 32937, the court stated the obvious, “to require service of a hard copy as well [as e-filing], would defeat the entire purpose of the e-filing system…”

Section 202.5-b(d)(1) provides in pertinent part:

“In any action subject to e-filing, all documents required to be filed with the court by a party that has consented to such e-filing shall be filed and served electronically, except as provided in this section.”

Section 202.5-b(h)(3) Disallows Serving Notice of Entry by Both e-filing and Mailing

Section 202.5-b(h)(3) provides in pertinent part:

“A party shall serve notice of entry of an order or judgment on another party by serving a copy of the order or judgment and written notice of its entry. A party MAY serve such documents electronically by filing them with the NYSCEF site and thus causing transmission by the site of notification of receipt of the documents, which SHALL constitute service thereof by the filer. In the ALTERNATIVE, a party may serve a copy of the order or judgment and written notice of its entry in hard copy by any method set forth in CPLR 2103 (b) (1) to (6). IF service is made in hard copy by any such method and a copy of the order or judgment and notice of its entry and proof of such hard copy service are thereafter filed with the NYSCEF site, transmission by NYSCEF of notification of receipt of those documents shall NOT constitute additional service of the notice of entry on the parties to whom the notification is sent.” (emphasis added)

Section 202.5-b(h)(3) does not permit serving the notice of entry by both e-filing and mailing. The section specifically uses the word alternative to offer a different method of serving the notice of entry. The Merriam-Webster dictionary provides the full definition of the word alternative as “a proposition or situation offering a choice between two or more things only one of which may be chosen”

Consequence of Serving by e-Filing and by Mail

Section 202.5-b(h)(3) specifically states, in the last sentence, that if both methods of service are performed, the e-filing does not constitute service in addition to the method of mailing.

Thus, if the attorney serves a Notice of Entry by e-filing and simultaneously serves a hard copy of the notice of entry by mail with an affidavit stating that it was served by mail, the number of days which the adversary has to file a notice of appeal becomes 35 days for the number of days by mail, instead of 30 days for the number of days by e-filing.

Even worse, if the attorney serves a notice of entry by mail days or weeks after serving it by e-filing, the time to file a notice of appeal does not terminate until 35 days after the notice of entry was mailed. Interestingly, if a notice of entry were to be mailed to an adversary more than 30 days after e-filing, the mailing should resurrect the time within which the adversary could file a notice of appeal.

If an attorney were permitted to serve a notice of entry upon an adversary by e-filing and to also serve the notice of entry by mailing and demand that the adversary has only 30 days to file a notice of appeal, this would allow the serving attorney to hoodwink their adversary who receives a hard copy version allowing 35 days.

In Susan Fazio et al., Respondents v Costco Wholesale Corporation, Appellant. 85 A.D.3d 443, 924 N.Y.S.2d 381, 2011 N.Y. Slip Op. 04740, the defendant appealed the Supreme Court Order denying the defendant’s motion for summary judgment dismissing the complaint.

Defendant Costco served its notice of appeal 32 days after the notice of entry was electronically served, two days too late for electronic service. The plaintiff alleged the notice of appeal was untimely. However, the plaintiff also served the notice of entry by mail and filed an affidavit stating that the notice of entry was served by mail. The court stated, “Thus, defendant had 35 days to notice its appeal (see CPLR 2103 [b] [2]).”

I mentioned to my partner that if an attorney were to send a copy of the electronically filed notice of entry to an adversary, the affidavit should state that it was served electronically and that a courtesy copy was mailed to the adversary. However, while this might be accomplished without running afoul of the rule, it is unnecessary.

Another attorney who is a friend of my partner said that he does just that. I advise not to send a courtesy copy by mail, but if a lawyer should choose to do so, I would caution to boldly mark the mailed notice of entry as a courtesy copy so as not to create confusion and either intentionally or inadvertently deceive the adversary.

CPLR § 5520(a) provides a remedy to cure a mistake but only where an appellant either serves or files a timely notice of appeal or notice of motion for permission to appeal. Cases invoking § 5520(a) have existed where the mistake was one which could occur when mailing. These mistakes do not happen when e-filing.

Thus, I do not serve a notice of entry by mail in a mandatory e-filed case or where all parties consented to eFiling. If you still want to serve a Notice of Entry on your adversary by mail, you are permitted to do so, but you do not need to eFile the Notice of Entry. If you serve a Notice of Entry by both eFiling and mail, you must know that the last day to file a Notice of Appeal is 35 days from the mailing. The E-File date is null.

How to eFile a Notice of Entry

Log into e-file
Click on “My Cases”
On the right side of the case, click on “File Documents”
On the e-file Case Information page, under Motion Documents, check the radio button for “Documents relating to an existing Motion/Cross-Motion/Petition/OSC “; click on “Next”
Select in the dropdown, which motion it is for;
For the “Document Type,” select “NOTICE OF ENTRY” (a copy of the Order stamped filed by the County Clerk must be attached in the same PDF document as the Notice of Entry. Do NOT file separately;
Check your PDF document to validate that the PDF file conforms to PDF/A specifications. PDF files that fail validation cannot be accepted for Electronic Filing.
Click on “Choose File” and upload the file for your Order with Notice of Entry (make sure you are uploading the correct file)
At the bottom of the page, click on “Next”
Check the box for “Filing Acknowledgment”
Click “File Documents”
On the next page, click on the “Confirmation Notice” button to download the confirmation notice.
You’re done!

What Has to Be Served When E-Filing a Notice of Entry?

Section 202.5-b(h)(3) states: “A party shall serve notice of entry of an order or judgment on another party by serving a copy of the order or judgment and written notice of its entry.” Thus, it appears you must electronically file and serve the following:

Written notice of entry (written does not mean hard copy) with:
A copy of the order or judgment (it must be stamped “filed” by the County Clerk. The original order may be mailed or emailed, and within a few days, the order stamped FILED will be uploaded to eFile)