Appellate Division: Second Judicial Department

M37059

C/sl

HOWARD MILLER, J.P.

STEPHEN G. CRANE

GLORIA GOLDSTEIN

ROBERT A. SPOLZINO, JJ.

2005-02329, 2005-06797 Christine Rivera, etc., et al., appellants, v YMCA of Greater New York, respondent. (Index No. 5964/03)

DECISION & ORDER ON MOTION

Motion by the appellants to vacate so much of a decision and order on motion of this court dated November 10, 2005, entitled "In the Matter of the Dismissal of Causes for Failure to Perfect - October 2005 Calendar", as dismissed an appeal from an order of the Supreme Court, Kings County, dated February 2, 2005 (Appellate Division Docket No. 2005-02329), pursuant to 22 NYCRR 670.8(e) for failure to timely perfect the same, to reinstate the appeal, and to enlarge the time to perfect that appeal and an appeal from a judgment of the same court dated May 9, 2005.

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 vacate so much of the decision and order on motion of this court dated November 10, 2005, as dismissed the appeal from the order dated February 2, 2005, is granted; and it is further,

ORDERED that, on this court's own motion, the appeal from the order dated February 2, 2005, is dismissed, without costs or disbursements, on the ground that the order was superseded by the judgment dated May 9, 2005 (see Matter of Aho, 39 NY2d 241, 248); and it is further,

ORDERED that the branch of the motion which is to enlarge the time to appeal from the judgment is granted; and it is further,

ORDERED that the appellants' time to perfect the appeal from the judgment is enlarged until April 12, 2006, and the record or appendix on 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.

MILLER, J.P., CRANE, GOLDSTEIN and SPOLZINO, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court