Was Appeal Time-Barred for Late Filing of Notice With Court?

It is not unusual for inmates to represent themselves in proceedings against prison authorities—legally characterized as appearing “pro se.”  But, as a recent case before New York State’s highest court illustrates, a so-called “jailhouse lawyer” may prevail in arguments against a more seasoned and licensed prosecutorial counterpart.

Daniel Miller, a prison inmate, sued the Department of Correction in Supreme Court—and, representing himself, sought to appeal an adverse decision in that Court to our State’s intermediate appellate court, the Appellate Division.  The DOC moved to dismiss Miller’s appeal to the Appellate Division, asserting that his notice of appeal was neither timely served nor timely filed. In opposition to that motion, Miller—a pro se inmate—submitted documents and an affidavit asserting that, before the deadline for filing, he delivered to a prison employee the notice of appeal addressed to the clerk’s office and a service copy addressed to the DOC, as well as records purporting to show that he requested a deduction of the cost of postage from his inmate account on that day. The Appellate Division nevertheless granted the DOC’s motion and dismissed the appeal without explanation.

Miller appealed to the Court of Appeals, our State’s highest court. On that appeal, the parties focused on Miller’s untimely filing. In that regard, Miller argued that the Appellate Division should have applied a pro se inmate “mailbox rule” to deem the notice of appeal timely filed upon delivery to prison authorities for forwarding to the appropriate court.

The CPLR provides that an appeal is taken when, in addition to being duly served, the notice of appeal is “fil[ed] . . . in the office where the judgment or order of the court of original instance is entered.” The CPLR further clarifies that “papers required to be filed shall be filed with the clerk of the court in which the action is triable.” Thus,  the CPLR indicates that filing occurs when the clerk’s office receives the notice of appeal by its express terms. And “filing” has long been understood to occur only upon actual receipt by the appropriate court clerk.

A “mailbox rule” for filing would also contravene the clear distinctions between filing and service drawn by the Legislature because the CPLR directs that, unlike filing, “service by mail shall be complete upon mailing.” The Court of Appeals was not free to disregard the statutory text defining when filing and service occurred or to otherwise endorse an exception to the relevant CPLR provisions that had not been adopted by the Legislature.

Miller’s reliance on a case– where the Supreme Court of the United States deemed a pro se prisoner’s notice of appeal to be filed within the meaning of the Federal Rules of Appellate Procedure when delivered to prison officials—was misplaced. The Supreme Court had the authority to interpret the Federal Rules—promulgated and adopted by the Court itself. But the Court of Appeals, in interpreting the CPLR, which consists of statutory provisions, was constrained to interpret to give effect to the will of the Legislature. And here, the Legislature’s intent to treat a notice of appeal “as ‘filed’ upon the actual receipt of those papers by the clerk of the court—rather than upon delivery to prison authorities for forwarding to the court—was manifest from the statute’s language and purpose.

But hold on for a minute. Miller pointed out that the Legislature also gave our courts the authority to excuse untimely filing under certain circumstances.  The CPLR provides that, “[i]f an appellant either serves or files a timely notice of appeal . . .  but neglects through mistake or excusable neglect to do another required act within the time limited, the court from or to which the appeal is taken . . . may grant an extension of time for curing the omission”. Here, the basis of the Appellate Division order of dismissal was unclear. While the Court could determine that the filing was untimely as a matter of law, it could not be discerned whether the Appellate Division dismissed based on untimely filing alone; whether the court determined if timely service was established; and—if so—whether the court considered that it could exercise discretion to excuse the untimely filing under the CPLR.  Accordingly, the matter was reversed and remitted to the Appellate Division for further proceedings.