IN RE: Mark FRY (1998)

On March 27, 1997, the Court of Appeals reversed the Appellate Division (226 A.D.2d 461, 641 N.Y.S.2d 54), which had affirmed an order of this Court dismissing the CPLR Article 78 proceeding for want of jurisdiction, holding that respondents waived the right to litigate the jurisdictional question and remitted the matter to the Supreme Court.  Matter of Fry v. Tarrytown, 89 N.Y.2d 714, 723, 658 N.Y.S.2d 205, 680 N.E.2d 578.   By letters dated January 7 and 9, 1998, brought to the undersigned's attention on March 10, 1998 respondents' counsel advised the Court of the above disposition (previously known to the Court) and petitioner's counsel requested a conference.

A review of the County Clerk's file indicates that the remittitur of the Court of Appeals has not been filed and apparently has not been received by the Clerk for filing.   The remittitur consists of a copy of the actual order of the Court of Appeals and the record on appeal.   Siegel, New York Practice (2d ed.), § 545;  12 Weinstein-Korn-Miller, New York Civil Practice, ¶ 5524.02;  11 Carmody-Wait 2d, Appeals To The Court of Appeals, § 71:157;  4 N.Y. Jur.2d, Appellate Review, § 781;  1 Newman, New York Appellate Practice, § 11.09;  22 NYCRR 500.15;  see, Treadwell v. Clark, No. 1, 124 App. Div. 256, 259, 108 N.Y.S. 730 (1st Dep't 1908), app. dism.  192 N.Y. 530, 84 N.E. 1121 (1908).

While an appeal is pending in the Court of Appeals, the lower courts retain jurisdiction to entertain appropriate applications with respect to the case.   Kleinman v. Metropolitan Life Ins. Co., 298 N.Y. 217, 81 N.E.2d 818 (1948).   The Court of Appeals loses jurisdiction (except for recall of the remittitur, i.e., in the nature of an amendment or reargument of its order) once the remittitur is filed in the court below and acted upon.  People ex rel. Smith v. Village of Nelliston, 79 N.Y. 638 (1879);  Greyhound Building Corp. of New York v. Wolf, 106 N.Y.S.2d 477 (App. Term 1st Dep't 1951).

It might be argued that once the Court of Appeals has finally disposed of the appeal, the courts below may act in respect thereto, consistent with the Court of Appeals order, without having yet received the remittitur.   However, CPLR 5524(b) specifically provides in part that the entry of a copy of the remittitur “shall be authority for any further proceedings.”

Therefore, for this Court to proceed, a copy of the remittitur must be entered in the County Clerk's Office.   CPLR 5524(b);  see, Judson v. Gray, 17 How. Prac, 289, 292-93 (Ct.App.1859);  Murray v. Blatchford, 2 Wend. 221 (Ct. of Errors 1829);  People v. Vignera, 29 A.D.2d 657, 286 N.Y.S.2d 557 (2d Dep't 1968) (especially dissent of Munder, J. at p. 658, 286 N.Y.S.2d 557);  Corash v. Texas Corp., 178 Misc. 1059, 37 N.Y.S.2d 316 (Supreme Ct. New York 1942).

Accordingly, the application by counsel to proceed in this matter is denied without prejudice to renewal after the filing of the remittitur.   Once the remittitur is filed with the Clerk's Office along with copies of the briefs filed with the Court of Appeals, the attorneys shall inform the Court and the matter shall be appropriately addressed.

JOAN B. LEFKOWITZ, Justice.