Appellate Division: Second Judicial Department

M34457

C/nal

ROBERT W. SCHMIDT, J.P.

BARRY A. COZIER

REINALDO E. RIVERA

STEVEN W. FISHER, JJ.

2004-08580 Salim Sheikh, appellant, v Amina Mariam Basheer, respondent. (Index No. 25884/04)

DECISION & ORDER ON MOTION

Motion by the respondent to dismiss an appeal from an order of the Supreme Court, Queens County, dated September 28, 2004, on the ground that it is not appealable as of right and leave to appeal has not been granted (see CPLR 5701), or to enlarge the time to serve and file a brief. By decision and order on motion dated November 3, 2005, the branch of the motion which is to dismiss the appeal was remitted to the Supreme Court, Queens County, to report on the issue of whether the order dated September 28, 2004, was issued sua sponte, or whether the court reviewed the defendant's order to show cause and the plaintiff's opposition thereto in rendering its decision, and the motion was held in abeyance in the interim. The Supreme Court, Queens County, has filed its report.

Upon the papers filed in support of the motion, the papers filed in opposition thereto, and upon the report of the Supreme Court, Queens County, it is

ORDERED that on the court's own motion, the appellant's notice of appeal from the order dated September 28, 2004, is treated as an application for leave to appeal and leave to appeal is granted (see CPLR 5701[c]); and it is further,

ORDERED that the branch of the motion which is to dismiss the appeal is denied; and it is further,

ORDERED that the branch of the motion which is to enlarge the time to serve and file a brief is granted; and it is further,

ORDERED that the respondent shall serve and file a brief on or before February 10, 2006.

SCHMIDT, J.P., COZIER, RIVERA and FISHER, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court