No. 17-8000
`
`
`IN THE
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`éupteme QEnutt of the finite!) étates
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`SORAZAM BETHUNE,
`
`Petitioner,
`
`V.
`
`MTA LONG ISLAND BUS,
`Respondent.
`
`On Petition for Writ of Certiorari to the
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`New York State Court of Appeals
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`BRIEF IN OPPOSITION
`
`MICHAEL J. PAGLINO, ESQ.
`
`COUNSEL OFEECORD
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`ARMIENTI, DEBELLIS,
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`GUGLIELMO & RHODEN,
`
`LLP
`
`39 Broadway, Suite 520
`New York, New York
`
`10006
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`(212) 809-7074
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`mpaglino@adgr1aw.com
`Counsel for Respondent
`
`
`
`

`

`- i -
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`QUESTIONS PRESENTED
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`None — no issues of federal law were involved in the disposition of this state
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`court tort action; nor is there any conflict in law between the state court of last
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`resort in the forum state -— that is, the New York State Court of Appeals — and any
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`court of last resort of any other state or the United States Court of Appeals.
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`Indeed petitioner makes no such claim.
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`Rather,
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`in the state court proceedings petitioner sought
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`to recover
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`for
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`personal injuries she claimed to have sustained by reason that the local commuter
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`bus on which she was a passenger allegedly drove in an unsafe manner. An action
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`was brought against the public authority bus company on a theory that its bus
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`operator was negligent in the manner in which he drove the bus, but the jury found
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`otherwise. A judgment was entered after a jury verdict in respondent’s favor and
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`plaintiffs (petitioner's) complaint thereby dismissed. Petitioner failed to timely
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`appeal the judgment. a circumstance she attributes to the fault of her then trial
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`counsel. But such is collateral to the subject matter of the personal injury action
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`she brought, and this is not the forum to seek redress from, or as a result of, any
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`action or inaction of her former counsel.
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`

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`- ii -
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`CORPORATE DISCLOSURE STATEMENT
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`Respondent
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`is not a publicly held corporation.
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`Rather,
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`respondent,
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`Metropolitan Suburban Bus Authority dfb/a and slhja MTA/Long Island Bus was
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`formerly a wholly owned subsidiary of the Metropolitan Transportation Authority, a
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`public benefit corporation created by New York State Public Authorities Law §1263.
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`MTA Long Island Bus ceased operations as of December 31, 2011.
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`

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`-i-
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`TABLE OF CONTENTS
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`PAGES
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`QUESTIONS PRESENTED .......................................................................................... i
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`CORPORATE DISCLOSURE STATEMENT............................................................... ii
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`SUMMARY OF BASES FOR DENIAL OF A WRIT OF CERTIORARI...................... 1
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`OBJECTION TO JURISDICTION OF THIS COURT.................................................. 3
`
`STATEMENT OF THE CASE ....................................................................................... 4
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`ARGUMENT................................................................................................................. 11
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`PETITIONER'S STATED REASONS FOR SEEKING REVIEW BY THIS
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`COURT ARE OUTSIDE THE SCOPE OF RULE 10 OF THE RULES OF
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`THIS COURT .......................................................................................................... 15
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`THIS COURT SHOULD DENY PETITIONER’S APPLICATION TO
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`PROCEED IN FORMAL PAUPERIS IN THIS COURT ......................................... 18
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`GENERAL OBJECTIONS TO PETITIONER’S MISUSE OF COURT
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`PROCEEDINGS ...................................................................................................... 21
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`CONCLUSION ............................................................................................................. 22
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`

`

`-ii-
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`RESPONDENT’S APPENDIX
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`N0.
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`Plaintiffs Verified Summons and Complaint .............................................................. '1
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`Defendant’s Answer ....................................................................................................... 2
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`Defendant’s Notice of Motion dated April 14, 2015 ...................................................... 3
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`Order of Hon. Angela A. Iannacci dated July 6, 2015 .................................................. 4
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`Relevant pages of the trial transcript ........................................................................... 5
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`Defendant’s Affirmation dated January 7, 2016 ........................................................... 6
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`Order of Hon. Thomas Feinman dated March 1, 2016 ................................................ 7
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`Judgment with Notice of Entry ..................................................................................... 8
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`Order of Appellate Division, Second Department dated June 30, 2016 ...................... 9
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`Notice of Appeal dated July 14, 2016 from plaintiff ................................................... 10
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`A copy of the letter brief filed by defense counsel dated August 3, 2016 ................... 11
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`Order of the Appellate Division, Second Department dated June 30, 2016 to
`the New York State Court of Appeals .................................................................... 12
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`Order of the New York State Court of Appeals dated and entered September
`8, 2016 ..................................................................................................................... 13
`
`Plaintiffs Notice of Appeal dated September 18, 2016 ............................................... 14
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`Defendant's Notice of Motion dated March 6, 2017 .................................................... 15
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`Reply Affirmation of defense counsel dated March 29, 2017 ..................................... 16
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`Order of the Appellate Division, Second Department dated May 10, 2017 ............... 17
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`Defendant’s letter brief dated June 28, 2017 .............................................................. 18
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`Affirmation in Opposition dated June 23, 2017 .......................................................... 19
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`

`

`- iii ~
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`The New York State Court of Appeals Order dated September 12, 2017 .................. 20
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`Reply Affidavit of Sorarazam Bethune in landlord/tenant litigation sworn to
`on June 30, 2017 ..................................................................................................... 21
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`Petitioner's motion in landlordltenant litigation to open judgment dated July
`17, 2017 and the supporting affidavit of Sororazam Bethune sworn to on
`July 16, 2017 ........................................................................................................... 22
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`Order of the Appellate Division, Second Department dated April 27, 2016 .............. 23
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`Order of The New York State Court of Appeals dates September 8, 2016 ............... 24
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`Order of Hon. Denise L. Sher dated October 19, 2015 ............................................... 25
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`

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`-iv-
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`TABLE OF AUTHORITIES
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`Cases
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`PAGES
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`Aetna Casualty & Surety Co., v. D’Elia, 149 A.D.2d 587 (2nd Dept. 1989) ................ 13
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`Ashton v. Morris M. Goldberg, P.C., 201 A.D.2d 602 (2mI Dept. 1994) ...................... 13
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`Bernstein v. Board of Appeals, 31 A.D.2d 650 (21":l Dept. 1968) ................................ 13
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`Hecht v. City of New York, 60 N.Y.2d 57, 61, (1933) .................................................. 14
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`Malik Coughlin, 127 A.D.2d 948 (3“d Dept. 1987) ....................................................... 14
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`Ocean Accident & Guarantee Corp. v. Otis Elevator 00., 291 NY. 254 (1943) ......... 14
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`Pravda v. NY. State DMV, 286 A.D.2d 838 (3rd Dept. 2001) ..................................... 13
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`Roy v. National Grange Mut. Ins. Co., 85 A.D.2d 832 (31":1 Dept. 1981) ..................... 14
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`Statutes
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`28 U.S.C. §1257(a) ....................................................................................................... 4, 9
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`28 U.S.C. §2101 .......................................................................................................... 10
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`NY. CPLR Rule 4405 .................................................................................................... 7
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`NY. CPLR §2211 ............................................................................................................ 7
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`NY. CPLR §5513 .................................................................................................... 10, 16
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`NY. CPLR §5513(a) ............................................................................................. passim
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`N.Y. CPLR §5513(d) ..................................................................................................... 13
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`N.Y. CPLR §5601 .......................................................................................................... 11
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`NY. CPLR Rule 2102(c) ............................................................................................... 10
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`NY. CPLR Rule 2103 ................................................................................................... 13
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`NY. Public Authorities Law §1263 ............................................................................... 1
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`

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`Rules
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`NY. 22 NYCRR §202.42 ............................................................................................... 2
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`NY. 22 NYCRR §670.3 .................................................................................................. 9
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`NY. 22 NYCRR 500.22(b)(4) ....................................................................................... 14
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`Sup. Ct. Rule 10 ........................................................................................................ 3, 15
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`Sup. Ct. Rule 13.1 ......................................................................................................... 18
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`

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`- 1 -
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`SUMMARY OF BASES FOR DENIAL OF A WRIT OF CERTIORARI
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`No certiorari review is available or warranted in this court as no federal
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`statutes, rules or regulations were plead or involved in the disposition of this state
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`court action. Nor is there any claim of a conflict between the highest court in the
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`forum state — that is the New York State Court of Appeals- and the highest court in
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`any other state. Rather petitioner expresses dissatisfaction with her then counsel,
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`Stuart A. Jackson, Esq., who is not a party to these proceedings, for, among other
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`things, the fact that no timely appeal of the Judgment was filed. To the extent
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`petitioner seeks redress against her former counsel, this is not the appropriate
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`venue to adjudicate such complaints.
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`This is a civil tort action commenced by petitioner (as the plaintiff) in a New
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`York State court of general jurisdiction, that is, in the Supreme Court of the State of
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`New York, in the County of Nassau, by which petitioner (as plaintiff) sought to
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`recover for personal injuries allegedly sustained on August 24, 2011 by reason of the
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`purported negligence of a bus operator, with regard to his movement of the bus on
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`which plaintiff was a passenger. There was no collision involved; rather, plaintiffs
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`pleading contended that as the bus traversed the roadway,
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`its movement was
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`“sudden”, “excessive” and unduly "abrupt.” A common law negligence claim was
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`asserted by petitioner (as plaintiff) against respondent (as defendant) MTA/Long
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`Island Bus. No federal statutes, rules or regulations were plead or involved in the
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`disposition of this state court matter at any level.
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`After the conclusion of pre-trial proceedings, the matter came on for a jury
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`

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`- 2 -
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`trial in the state court system. At the time plaintiff was represented by Stuart A.
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`Jackson, Esq. Consistent with the prevailing rules the trial was bifurcated1
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`(meaning the liability phase would precede the damages phase). The jury trial on
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`liability was conducted on November 5 and 6, 2015. On the latter date a unanimous
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`jury determined that
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`the bus operator was not negligent.
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`The verdict was
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`thereafter reduced to a judgment dismissing plaintiffs complaint, which judgment
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`was entered by the Nassau County Clerk on April 22, 2016 and served on both
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`plaintiff and plaintiff 5 trial counsel with notice of entry on May 13, 2016.
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`As relates to the judgment, plaintiff who was, by then, pro se, filed a Notice of
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`Appeal of the Judgment with the Nassau County Clerk on September 19, 2016, but
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`which was three months past the statutorily mandated time-frame afforded by New
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`York’s Civil Practice Law and Rules (“CPLR") §5513(a) thereby depriving the state
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`appellate court (that is, the Appellate Division, Second Department) of jurisdiction
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`to entertain an appeal of the judgment.
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`Accordingly, on defendant’s motion, by Order of the Appellate Division,
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`Second Department dated and entered May 10, 2017, plaintiffs appeal of the
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`Judgment was dismissed as untimely pursuant to CPLR §5513(a).
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`The May 10, 2017 order of the Appellate Division, Second Department
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`correctly dismissed plaintiffs appeal as untimely.
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`Indeed, plaintiff did not dispute
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`in the state court, nor in this court that her appeal of the Judgement was untimely.
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`Rather she blames her former attorney, Stuart A. Jackson, Esq.
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`for having
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`1 Uniform Rules for the New York State Trial Courts 22 NYCRR §202.42
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`

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`- 3 -
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`“forgotten” to appeal from the Judgment. However, any dispute plaintiff may have
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`with her former counsel was not grounds to ignore the statutory constraint.
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`Thereafter plaintiff sought to appeal to the highest court in New York State,
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`that is, the New York State Court of Appeals, who declined discretionary review,
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`per its order dated and entered September 12, 2017.
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`Even assuming arguendo,
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`jurisdiction of this court, none of the considerations
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`listed by Rule 10 of this court2 are present in the case sub judice.
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`OBJECTION TO JURISDICTION OF THIS COURT
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`Respondent objects to the jurisdiction of this court. This court is without
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`jurisdiction under 28 U.S.C. §1257(a).3
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`Indeed petitioner does not assert
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`the
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`jurisdiction of this court under that statute (or under any other statute) but merely
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`contends in her jurisdictional statement that “The [presumably NYS] Court of
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`Appeal’s Clerk’s Office advised me that I could make a Motion to the United States
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`Supreme Court in Washington DC. with respect to reviewing the case" (Petition at p.
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`Additionally, because petitioner seeks to premise review on actions that
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`themselves were untimely, i.e., an untimely motion to set aside the verdict; and an
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`2 Sup. Ct. Rule 10
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`3 28 U.S.C.§1257(a) states:
`(a) Final judgments or decrees rendered by the highest court of a State in which a decision could be
`had, may be reviewed by the Supreme Court by writ of certiorari where the validity of a treaty or
`statute of the United States is drawn in question or where the validity of a statute of any State is
`drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the
`United States, or where any title, right, privilege, or immunity is specially set up or claimed under
`the Constitution or the treaties or statutes of, or any commission held or authority exercised under,
`the United States.
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`

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`- 4 -
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`untimely notice of appeal of a judgment, petitioner’s persistence in thereafter
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`litigating the matter despite the foundational untimeliness cannot create jurisdiction
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`even if the last activity in state court was the issuance of an Order dated September
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`12, 2017 by the New York State Court of Appeals declining discretionary review of an
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`appellate division order dismissing the untimely appeal.
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`STATEMENT OF THE CASE
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`As indicated, this is a civil action commenced in the Supreme Court of the
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`State of New York, County of Nassau4, whereby petitioner (then designated as
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`plaintiff), Sororazam Bethune, alleges she sustained personal injuries on August 24,
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`2011 when she was a passenger on an N79 bus, allegedly consequent
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`to the
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`negligence of the bus operator who, according to plaintiff's complaint, “suddenly,
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`abruptly and with excessive, unnecessary and undue force, swerved and steered
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`said bus”. (See 118 of Plaintiffs Verified Complaint which is set forth, together with
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`the Summons, in Resp. App. 1)5
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`Plaintiff claims that the movement of the bus caused her to lose her balance
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`and, while she did not fall, she claims to have hit her left ankle on a chair. There
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`was no contact between the bus and any other vehicle.
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`Respondent (then designated as defendant) denied plaintiff's assertions of
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`negligence on the part of the bus operator by its answer dated November 9, 2012
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`4 In New York State this is a trial level court and a court of original instance.
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`5 Respondent has submitted appendices setting forth documents referred to in this Brief in
`Opposition. The appendices submitted by respondent will be cited herein as “Resp. App." followed by
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`

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`- 5 -
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`and served on plaintiffs original counsel of record, Law Offices of Kevin A.
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`McCarthy. (See, Resp. App. 2 - Answer of defendant together with proof of service).
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`After a period of pre-trial disclosure, defendant had moved pursuant to
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`CPLR Rule 3212 for summary judgment
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`in its favor.
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`(See, Resp. App. 3 —
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`defendant’s Notice of Motion dated April 14, 2015 and supporting affirmation of
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`even date (without exhibits)). Such motion was denied by Order of Hon. Angela A.
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`Iannacci dated July 6, 2015 (Resp. App. 4) as the judge perceived that there was a
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`factual diapute precluding the grant of a judgment as a matter of law
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`The Iannacci Order (Resp. App. 4) is mentioned herein only to explain its
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`context, since petitioner quotes from that court's decision (Petition at p. 5, 1I2). The
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`Iannacci Order, however, has no relevance to the issues sought to be raised before
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`this court.
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`The matter thereafter proceeded to trial, which, according to applicable rules,
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`was bifurcated. The liability trial was conducted before the Hon. Thomas Feinman
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`in the Supreme Court, Nassau County on November 5 and 6, 2015 which resulted in
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`a defense verdict. A unanimous jury determined that defendant MTA Long Island
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`Bus was n_ot negligent.
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`(See Resp. App. 5 - relevant pages of the trial transcript - at
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`page 155).6
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`5 Petitioner makes a misstatement of fact to this court when she falsely asserts (e.g., Petition at p.
`23, 1|20) that the trial judge told the jury not to waste their time on this case and they should decide
`it in the same day and go home. To the contrary, as reflected in the trial transcript the jury was told
`just the opposite, that is, they were instructed that the matter was very important to the parties and
`so they should give the matter careful deliberation and should take as much time as they needed to
`decide the issues. (See Resp. App. 5 — Trial Transcript at pps. 146-149). Petitioner also mistakenly
`states that the liability trial was one day (Petition at p. 4) when in fact it was two days. (See Resp.
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`

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`- 6 -
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`While during the trial proceedings defense counsel had moved for a directed
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`verdict, the court deferred ruling on same, and, after the defense verdict, denied the
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`motion as moot (See Resp. App. 5 — relevant pages of the trial transcript at page
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`155).7
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`Because, at the liability trial, the jury found no negligence on the part of the
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`respondent, the matter did n_ot proceed to a damages trial.B
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`Petitioner's then counsel, Stuart A. Jackson, Esq., moved by Order to Show
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`Cause requesting that Judge Feinman set aside the defense verdict. However, such
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`motion was untimely. Under New York State Civil Practice Rules and Laws (“CPLR”)
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`Rule 4405, “A motion under this article [i.e. to set aside a verdict] shall be made before
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`the judge who presided at the trial within fifteen days after decision, verdict or
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`discharge of the jury.” The verdict in the above-captioned matter was rendered, and
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`the jury discharged on November 6, 2015. See Resp. App. 5 — Trial Transcript at p.
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`App. 5 — Trial Transcript cover)
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`7 Petitioner makes a misstatement of fact to this court when she falsely asserts (e.g., Petition, at p.
`23, §E) that defense counsel moved the trial court for a directed verdict outside the presence of her
`counsel. Such motion for a directed verdict was made by defense counsel in the presence of
`petitioner's (plaintiffs) then counsel, Stuart A. Jackson. Esq., as reflected by the transcript of the
`trial proceedings before Judge Feinman which prove the presence and participation by plaintiff's
`counsel in the oral argument before the court on defense counsel's motion (Resp. App. 5 — Trial
`Transcript at pps. 151-154). The court reserved decision (Resp. App. 5 - Trial Transcript at p. 154),
`and thereafter denied defendant's motion as moot after the jury returned a verdict in defendant's
`favor (Resp. App. 5 — Trial Transcript at p. 155).
`
`3 Accordingly, petitioner's discourse as to her alleged injuries and the numerous medical records
`appended to her motion papers were not part of the liability trial conducted before Judge Feinman
`and are de hers the reviewable record. As liability was determined in favor of the defendant a trial
`on damages was not necessary. Thus the issue of whether or not petitioner’s alleged injuries were
`causally related to the bus "accident” was not litigated, and plaintiffs statements in this regard are
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`

`

`According to New York State law, CPLR §2211, “A motion on notice is made
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`when a notice of the motion or an order to show cause is served." Plaintiffs Order to
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`Show Cause was served on November 30, 2015, a full twenty~four (24) days after the
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`verdict was rendered. Therefore, Plaintiffs Order to Show Cause to set aside the
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`verdict in this matter was untimely. See, Resp. App. 6 - Defendant’s Affirmation
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`dated January 7, 2016 at 1I1l8-9 (without exhibits) submitted in opposition to plaintiffs
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`motion to set aside the verdict wherein defendant opposed plaintiffs motion on
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`timeliness grounds and also on the merits.
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`Plaintiffs untimely motion to set aside the defense verdict was denied by
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`Order of Hon. Thomas Feinman dated March 1, 2016. Resp. App. 7.9
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`The verdict was then reduced to a judgment that was entered on April 22,
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`2016 in favor of the defendant MTA Long Island Bus dismissing plaintiffs
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`complaint.
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`(See, Resp. App. 8 - Judgment with Notice of Entry and proof of its
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`service by mail on May 13, 2016 on both the petitioner and on Stuart A. Jackson,
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`Esq., the attorney who represented petitioner during the liability trial.)
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`Petitioner first attempted to pursue an appeal, o_nly of the Order of Judge
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`Feinman dated March 1, 2016 and entered on March 2, 2016. However,
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`the
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`Appellate Division, Second Department by its order dated June 30, 2016 dismissed
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`9 Petitioner does not dispute that her counsel's motion to set aside the defense verdict was untimely.
`To the contrary, it is petitioner’s contention that her attorney committed legal error in this regard.
`However, such contention is not a matter properly before this court.
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`

`

`. 3 .
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`the appeal of Judge Feinman’s Order on the ground that the right of direct appeal of
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`that order terminated upon the entry of the final judgment (so no appeal lied from
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`that order). (See, Resp. App. 9 - Order of Appellate Division, Second Department
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`dated June 30, 2016).
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`Nevertheless petitioner continued pursuing an appeal of Judge Feinman’s
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`Order, in seeking review by the New York State Court of Appeals (the highest court
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`of the state).
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`In this regard plaintiff filed a Notice of Appeal dated July 14, 2016
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`(Resp. App. 10) directed to the New York State Court of Appeals (which was
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`improper); moved the New York State Court of Appeals for leave to appeal the
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`Order of the Appellate Division, Second Department dated June 30, 2016; and, also
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`sought poor person relief. The New York State Court of Appeals on its own
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`initiative requested briefing on the jurisdictional issues. A copy of the letter brief
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`filed by defense counsel dated August 3, 2016 is set forth in Resp. App. 11; A copy
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`of the Affirmation of defense counsel dated July 22, 2016 (without exhibits)
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`submitted in opposition to plaintiffs motion for leave to appeal the Order of the
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`Appellate Division, Second Department dated June 30, 2016 to the New York State
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`Court of Appeals is set forth in Resp. App. 12.
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`By Order of the New York State Court of Appeals dated and entered
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`September 8, 2016‘ (Resp. App. 13), petitioner’s appeal of Judge Feinman’s “March
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`2016 Supreme Court order and the April 2016 Supreme Court Judgment [were]
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`dismissed... as untimely” citing CPLR §5513(a). While respondent disputes that
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`

`

`- 9 -
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`certiorari could properly be taken to this court in the absence of any Rule 10
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`considerations, or outside the scope of 28 U.S.C. §1257(a), nevertheless, it should be
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`noted that plaintiff (petitioner) sought no relief from this court as to the September
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`8, 2016 final disposition of plaintiff’s attempted appeals of the March 2016 Order
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`and of the April 2016 Judgment by New York State’s court of last resort. Thus,
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`petitioner is time-barred from review of the September 8, 2016 Order of the New
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`York State Court of Appeals (Resp. App. 13) by reason of the 90 day deadline
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`imposed by 28 U.S.C. §2101 which elapsed without review having been sought in
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`this court. See also Sup. Ct. Rule 13.1.
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`Instead, what plaintiff (petitioner) did, was to file another (untimely) Notice
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`of Appeal (dated September 18, 2016), with the Nassau County Clerk (that is, in the
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`court of original instance, the Supreme Court of the State of New York, County of
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`Nassau, again attempting to appeal the April 2016 judgment. (See Resp. App. 14 -
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`Plaintiffs Notice of Appeal dated September 18, 2016).10
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`‘0 Petitioner states that she was “given a chance to file Untimely Notice of Appeal as Prose, given a
`new Docket Number to appeal” (Petition at p. 20, 1115, last two lines). Such suggests some type of
`approval was given to petitioner from some unspecified entity to file an untimely Notice of Appeal.
`That was go; the case. The Nassau County Clerk accepted plaintiffs untimely Notice of Appeal
`dated September 18, 2016 for filing in accordance with CPLR Rule 2102(c) which provides that "a
`clerk shall not refuse to accept for filing any paper presented for that purpose” unless there is a
`specific direction not to do so. When tendering a Notice of Appeal for filing in the lower court, two
`additional copies of the Notice of Appeal must be presented to the clerk. (Rules of Appellate Division,
`Second Department 22 NYCRR §670.3) The reason for multiple copies is that the lower court then
`forwards the two copies to the Appellate Divisien, Second Department. (Rules of Appellate Division.
`Second Department 22 NYCRR §670.3) Thereafter, for administrative purposes, each new filing in
`the Appellate Division, Second Department is issued a docket number. It is therefore of no moment
`that a docket number was assigned by the Appellate Division, Second Department in connection
`with plaintiffs September 18, 2016 Notice of Appeal (Resp. App. 14).
`
`Along these same lines petitioner misstates in in her QUESTIONS PRESENTED at Petition, item
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`

`

`- 10 -
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`By Notice of Motion dated March 6, 2017, defendant moved to dismiss
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`plaintiffs September 18, 2016 Notice of Appeal pursuant to CPLR §5513 by reason
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`that it was time-barred. See, Resp. App. 15 - defendant’s Notice of Motion dated
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`March 6, 2017, and the supporting affirmation of defense counsel of even date
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`(without exhibits) and Resp. App. 16 - Reply Affirmation of defense counsel dated
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`March 29, 2017 (without exhibits).
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`This motion practice culminated in the unanimous Order of the Appellate
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`Division, Second Department dated May 10, 2017 (Resp. App. 17) dismissing
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`plaintiffs appeal of the April 2016 Judgment by reason that it was time-barred
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`pursuant to CPLR §5513(a).
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`Thereafter, plaintiff sought review of the Order of the Appellate Division,
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`Second Department dated May 10, 2017 (Resp. App. 17) by the New York State
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`Court of Appeals. That court sua sponte invited comment on whether the court had
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`jurisdiction. Defendant submitted a letter brief dated June 28, 2017 explaining,
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`inter alia, that none of the bases set forth in CPLR §5601 would permit an appeal
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`as of right to the New York State Court of Appeals (Resp. App. 18). An Affirmation
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`of defense counsel dated June 23, 2017 was also submitted in opposition to
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`plaintiff’s motion for leave to appeal and other relief.
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`See Resp. App. 19 —
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`Q5, top of p. iii that, “Thereafter Appellate Division allowed me to file Untimely Notice of Appeal
`from the Judgment due to legal Mia-representation..." The appellate court permitted no such thing
`as explained above. Rather petitioner, on her own initiative, and without any court's “approval” filed
`an untimely Notice of Appeal of the Judgment with the Nassau County Clerk’s office. Moreover.
`despite petitioner's numerous references and criticisms of her former attorney, any dispute she may
`have with him is not the subject of the personal injury action she brought against the bus company.
`
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`-11-
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`Affirmation in Opposition dated June 23, 2017 (without exhibits).
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`The New York State Court of Appeals dismissed plaintiffs appeal and denied
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`plaintiff’s motion per its Order dated September 12, 2017 (Resp. App. 20).
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`Thereafter plaintiff petitioned this court for a writ of certiorari which is the
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`matter sub judice.
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`ARGUMENT
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`Plaintiff concedes to this court that no timely appeal was taken of the April
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`22, 2016 judgment.
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`Indeed,
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`in blaming the untimeliness of the appeal of the
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`Judgment on her trial counsel, petitioner asserts to this court that “My attorney did
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`not Appeal from the JUDGMENT entered April 22, 2016, and the Appellate
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`Division 2Ml J.D. Dismissed my case because my attorney forgot to file from the
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`Judgment” (Petition at p. 20, 1115).
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`This court is not imbued with the power to correct an error by a litigant or
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`litigant's counsel in failing to timely serve and file a Notice of Appeal as is the
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`circumstance in the case sub judice.“
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`Petitioner is apparently dissatisfied with her discharged counsel.12 However,
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`'1 We take no position as to who, as between petitioner and her former counsel, had failed to timely
`file a Notice of Appeal of the Judgment entered on April 22, 2016.
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`'2 Petitioner unilaterally discharged her counsel sometime in May 2016. Petitioner states, “I
`released my attorney which was approved by the Appellate Division” (Petition at p. 20, 1[15, third
`line from bottom). The first part of that sentence is accurate, that is, according to document’s
`petitioner submitted earlier in these proceedings, petitioner had discharged her attorney. The
`second part of petitioner's representation is mt, however, accurate. No approval of the Appellate
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`this is not a proper forum for such grievances.
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`There is no dispute that no timely Notice of Appeal was filed in the Supreme
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`Court, Nassau County with regard to the Judgment entered by the Nassau County
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`Clerk on April 22, 2016.
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`The Appellate Division correctly applied the relevant New York State statute,
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`CPLR §5513(a) which provides a mandatogl; time frame for a party to take an
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`appeal as follows:
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`“An appeal as of right must be taken within thirty days after
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`service by a party upon the appellant of a copy of the judgment or order appealed
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`from and written notice of its entry....”
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`On May 13, 2016, both plaintiff and plaintiff’s then counsel, Stuart A.
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`Jackson, Esq., were served with written Notice of Entry of the April 2016 Judgment
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`(Resp. App. 8).
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`While CPLR §5513(a) provides a deadline to file a Notice of Appeal for no
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`later than 30 days after service with Notice of Entry, where, as in this case, service
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`was made by regular mail, an additional five (5) days is added pursuant to CPLR
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`§5513(d) and CPLR Rule 2103, making the deadline 35 days. Thus, the 35 days
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`from May 13, 2016 in which plaintiff had to file a Notice of Appeal of the Judgment
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`expired on June 17, 2016', three months prior to September 18, 2016, the date of
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`petitioner’s Notice of Appeal of the Judgment
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`(Resp. App. 14).
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`Indeed this
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`Petitioner repeats her hybrid misstatement at p. 21, 1116. As was petitioner's right, she discharged
`her former counsel. She then informed the Appellate Division, Second Department of the fact, which
`is different than having had the approval of that court.
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`mandatory statutory timeframe (that is 30 days, plus an additional five days for
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`mailing) has been strictly enforced by the appellate courts of New York State. See,
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`e.g. Ashton v. Morris M. Goldberg, RC, 201 A.D.2d 602 (2"d Dept. 1994); AfllLa
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`Casualty & Surety Co., v. D’Eli
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`, 149 A.D.2d 587 (2“d Dept. 1989); MM
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`Board of Appeals, 31 A.D.2d 650 (2nd Dept. 1968).
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`Plaintiffs pro se status does not relieve her of the obligation for timely filing
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`a Notice of Appeal. Pravda v. NY. State DMV, 286 A.D.2d 838 (3rd Dept. 2001).
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`Further, the New York State Court of Appeals has categorically held that
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`“[t]he power of an appellate court to review a judgment is subject to an appeal being
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`timely taken”. WM, 60 N.Y.2d 57, 61, (1983). See also, may
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`Accident & Guarantee Corp. v. Otis Elevator Co., 291 NY. 254 (1943); mail;
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`Coughlin, 127 A.D.2d 948 (3rd Dept.