Appellate Division: Second Judicial Department

M36619

S/nal

DAVID S. RITTER, J.P.

REINALDO E. RIVERA

ROBERT A. SPOLZINO

JOSEPH COVELLO, JJ.

2004-10709 Yohanny Ortiz, respondent, v Leo Batash, etc., et al., appellants. (Index No. 26806/94)

DECISION & ORDER ON MOTION

On the court's own motion, it is

ORDERED that its decision and order on motion dated February 3, 2006, in the above-entitled case is recalled and vacated, and the following decision and order on motion is substituted therefor:

Motion by the respondent on an appeal from an order of the Supreme Court, Queens County, dated July 19, 2004, (1) for leave to reargue a motion to dismiss the appeal on the ground that the appeal was not timely taken, which was determined by decision and order on motion of this court dated December 15, 2005, and (2) to dismiss the appeal on the ground that the record is incomplete, or to enlarge the time to serve and file a brief.

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 for leave to reargue is denied; and it is further,

ORDERED that the branch of the motion which is to dismiss the appeal on the ground that the record is incomplete is denied on condition that on or before March 13, 2006, the appellants serve and file a supplemental record in the form attached to their opposition papers; 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 the respondent's time to serve and file a brief is enlarged until April 13, 2006, and the respondent's brief must be served and filed on or before that date.

RITTER, J.P., RIVERA, SPOLZINO and COVELLO, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court