Alterescu v. New York City Department Of Education
- Katherine Failla
- 1:21-cv-00925
- U.S. District Court · Southern District of New York
- 5
In Alterescu v. New York City Department of Education, Judge Failla denied Alterescu’s requests to extend the appeal deadline and waive appeal fees.
Felicia Alterescu could not obtain more time to file a notice of appeal or permission to proceed without paying appeal fees; the defendants opposed the extension request.
What happened
In Alterescu v. New York City Department of Education, Felicia Alterescu asked for more time to appeal the court’s decision and asked to proceed without paying appeal fees. She said her lawyer had not told her about the decision in time.
The court applied the rule requiring a showing of good reason or excusable neglect when an appeal deadline is missed. It found that Alterescu did not meet that standard, especially because her lawyer provided evidence that the decision had been sent to her the day after it was issued.
Judge Katherine Polk Failla denied both motions. The court also certified that an appeal from this order would not be taken in good faith, so fee-free status was denied for any appeal from the order.
The detailed version
- Alterescu v. New York City Department Of Education · No. 1:21-cv-00925
- Katherine Failla
- Nov. 29, 2022
Background
Felicia Alterescu filed a motion identified as pro se seeking an extension of time to file a notice of appeal. She also sought permission to proceed without paying the required filing fees on appeal. Alterescu stated that her lawyer had not informed her of the court’s decision in time.
The judgment was entered on August 26, 2022. Alterescu filed her extension motion on October 25, 2022. The court determined that she had missed the ordinary 30-day appeal deadline but had filed within the period in which a court may extend that deadline.
After Alterescu filed her motions, her lawyer, D. Christopher Mason, submitted a letter stating that his office had sent Alterescu the court’s decision by email on August 24, 2022, the day after it was issued. The defendants opposed the extension request and argued that Alterescu had not shown excusable neglect.
Legal standard
Under Federal Rule of Appellate Procedure 4(a)(5)(A), a court may extend the time to appeal if the motion is timely and the applicant shows either good cause or excusable neglect. Good cause applies when the delay occurred without fault. Excusable neglect applies when there was fault but the circumstances may justify forgiving the delay.
Because Alterescu attributed the delay to her lawyer’s failure to notify her promptly, the court applied the excusable-neglect standard. The person seeking the extension bears the burden of proving excusable neglect. The court considered four factors: possible harm to the opposing parties, the length and effect of the delay, the reason for the delay and whether it was within the applicant’s control, and whether the applicant acted honestly.
Court’s analysis
The court held that Alterescu failed to meet her burden. It explained that, absent extraordinary circumstances, a lawyer’s miscommunication with a client about preserving an appeal right generally does not establish excusable neglect. The court also noted that a person’s failure to receive notice because of a failure to maintain communication or provide updated contact information generally does not establish excusable neglect.
The court further found that Alterescu’s explanation conflicted with the record. Her lawyer had provided evidence that the decision was sent to her on August 24, 2022. Based on that record, the court concluded that Alterescu had entirely failed to show excusable neglect.
Disposition
The court denied Alterescu’s motion for an extension of time to file a notice of appeal. Because it denied that motion, it also denied her motion for permission to proceed without paying fees on appeal. The court directed the clerk to terminate both motions and certified under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. The court therefore denied fee-free status for an appeal from the order.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.