Biton v. Baxter Healthcare Corp.

*426Having served the orders and notice of entry upon defendants by mail on October 27, 2011, plaintiff had until December 1, 2011 to file a notice of appeal, i.e., 35 days later (CPLR 5513 [a], [d]). Since she did not file a notice of appeal until December 7, 2011, the appeal must be dismissed (see Retta v 160 Water St. Assoc., L.P., 94 AD3d 623 [1st Dept 2012]). In addition, the order entered October 25, 2011 is not appealable as of right under CPLR 5701 (a) because it did not resolve a motion made upon notice (see Kalyanaram v New York Inst. of Tech., 91 AD3d 532 [1st Dept 2012]).

Were we to…