Appellate Division: Second Judicial Department

M36042

E/sl

THOMAS A. ADAMS, J.P.

DAVID S. RITTER

FRED T. SANTUCCI

ROBERT J. LUNN, JJ.

2005-05387, 2005-02430 In the Matter of Thomas F. Surace, petitioner- respondent, v Marion S. Sinek, etc., et al., respondents, County of Westchester, et al., appellants. (Appeal No. 1) (Index No. 1159/04) In the Matter of Thomas F. Surace, petitioner- respondent, v County of Westchester respondent, Westchester County District Attorney's Office, appellant. (Appeal No. 2) (Index No. 9094/04)

DECISION & ORDER ON MOTION

Motion by the appellants to recall and vacate so much of a decision and order on motion of this court, entitled "In the Matter of the Dismissal of Causes for Failure to Perfect - October 2005 Calendar", dated November 10, 2005, as dismissed an appeal from an order of the Supreme Court, Westchester County, entered February 15, 2005 (Appellate Division Docket No. 2005-02430), pursuant to 22 NYCRR 670.8(e) for failure to timely perfect the same, to reinstate that appeal, to enlarge the time to perfect that appeal, to enlarge the time to perfect an appeal from a judgment of the same court entered May 19, 2005 (Appellate Division Docket No. 2005-05387), and to consolidate the appeals.

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

ORDERED that the branch of the motion which is to recall and vacate so much of the decision and order on motion of this court entered November 10, 2005, as dismissed the appeal from the order dated February 15, 2005, is granted; and it is further,

ORDERED that on the court's own motion, the appeal from the order entered February 15, 2005, is dismissed, without costs or disbursements, on the ground that no appeal lies as of right from an order in a proceeding pursuant to CPLR article 78 (see CPLR 5701[b][1]) and we decline to grant leave to appeal; and it is further,

ORDERED that the branch of the motion which is to enlarge the time to perfect the appeal from the judgment entered May 19, 2005, is granted, the appellant's time to perfect the appeal from the judgment is enlarged until March 17, 2006, and the record or appendix on that appeal and the appellant's brief must be served and filed on or before that date; and it is further,

ORDERED that the motion is otherwise denied as academic.

ADAMS, J.P., RITTER, SANTUCCI and LUNN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court