Appellate Division: Second Judicial Department

M35992

C/sl

A. GAIL PRUDENTI, P.J.

DAVID S. RITTER

REINALDO E. RIVERA

STEVEN W. FISHER, JJ.

2005-04087 Stacey L. Brian, respondent, v David A. Brian, appellant. (Index No. 751/03)

DECISION & ORDER ON MOTION

Motion by the appellant for leave to reargue a decision and order on application of this court dated December 7, 2005, which dismissed an appeal from an order of the Supreme Court, Dutchess County, dated March 25, 2005, on the ground that the order is not appealable as of right.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the motion is granted; and it is further,

ORDERED that upon reargument, the decision and order on application of this court dated December 7, 2005, is recalled and vacated; and it is further,

ORDERED that on the court's own motion, the notice of appeal from the order dated March 25, 2005, is deemed to be a premature notice of appeal from a judgment of the same court dated May 16, 2005 (see CPLR 5520[c]); and it is further,

ORDERED that on the court's own motion, the appellant's time to perfect the appeal is enlarged until April 20, 2006, and the record or appendix on the appeal and the appellant's brief must be served and filed on or before that date.

PRUDENTI, P.J., RITTER, RIVERA and FISHER, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court