American Banana Co. v. Venezolana Internacional de Aviacion S.A.

Motion for leave to appeal to the Court of Appeals from the order of this court, entered January 4, 1979 [67 AD2d 613] reversing an order, Supreme Court, New York County, entered July 26, 1978, which granted summary judgment to defendant and denying said motion for summary judgment, is granted. Appellant served plaintiif with the notice of motion for leave to appeal 31 days after service of notice of entry of our order, after withdrawing its appeal to the Court of Appeals on the advice of the clerk of that court that an appeal did not lie as of right. CPLR 5513 (subd [b]) provides that a motion for leave to appeal must be made within 30 days of service of a copy of the order with notice of entry, but CPLR 5514 provides that if an appeal is taken and dismissed, the 30 days shall be computed from the dismissal. This has been interpreted to mean that computation of the time allowed begins upon service of a copy of the order terminating the first attempted appeal with written notice of its entry. (Matter of Park East Corp. v Whalen, 38 NY2d 559.) In this case there is no order of dismissal since appellant voluntarily withdrew its appeal. Had it not so withdrawn, the 30 days within which it had to make a motion for leave to appeal would not have begun to run. Since no order was entered, there is doubt as to whether we can permit further review in the Court of Appeals. Assuming that appellant’s time had not lapsed at the time it made the instant motion, we exercise our discretion to grant leave to appeal. Ultimate determination of whether the time to move had lapsed should await the determination of a motion in the Court of Appeals to dismiss the appeal. (See Tai On Luck Corp. v Cirota, 36 AD2d 708, app dsmd 29 NY2d 747.) Concur—Kupferman, J. P., Sandler, Sullivan, Lane and Lupiano, JJ.