Appellate Division: Second Judicial Department

M37130

E/sl

GABRIEL M. KRAUSMAN, J.P.

DANIEL F. LUCIANO

STEVEN W. FISHER

MARK C. DILLON, JJ.

2005-03064, 2005-08690, 2006-01773 Christine Degliuomini, appellant-respondent, v Beatrice Degliuomini, respondent-appellant. (Appeal No. 1) Christine Degliuomini, respondent, v Beatrice Degliuomini, appellant. (Appeal No. 2) Christine Degliuomini, appellant, v Beatrice Degliuomini, respondent. (Appeal No. 3) (Index No. 7230/99)

DECISION & ORDER ON MOTION

Motion by Christine Degliuomini (1) 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 and cross appeal from an order of the Supreme Court, Kings County, dated February 10, 2005 (Appellate Division Docket No. 2005-03064), pursuant to 22 NYCRR 670.8(e) for failure to timely perfect the same, (2) to reinstate that appeal and to enlarge the time to perfect that appeal, (3) to consolidate that appeal with an appeal from an order of the Supreme Court, Kings County, dated February 21, 2006 (Appellate Division Docket No. 2006-01773), (4) to stay Beatrice Degliuomini from, inter alia, dissipating certain partition sale proceeds pending hearing and determination of the appeals and cross appeal, and (5) to direct the immediate release of certain funds held by Arnold Ludwig representing use and occupancy payable by Beatrice Degliuomini. Application by Beatrice Degliuomini pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to perfect an appeal from an order of the same court dated September 9, 2005 (Appellate Division Docket No. 2005-08690), and to enlarge her time to perfect appeals "previously filed and arising out of the same orders previously issued."

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

ORDERED that the branches of the motion which are to recall and 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 10, 2005, to reinstate that appeal, and to enlarge the time to perfect that appeal, are granted, 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 10, 2005, is recalled and vacated, the time to perfect that appeal is enlarged until May 15, 2006, the joint record or appendix on appeal and Christine Degliuomini's brief must be served and filed on or before that date; and it is further,

ORDERED that on the court's own motion, so much of the decision and order on motion of this court dated November 10, 2005 as dismissed the cross appeal from the order dated February 10, 2005, is recalled and vacated, and Beatrice Degliuomini's answering brief, including her points of argument on the cross appeal shall be filed in accordance with the rules of this court (see 22 NYCRR 670.8[c][3]; and it is further,

ORDERED that the branch of the motion which is to consolidate is denied as unnecessary as the appeals may be consolidated as of right (see 22 NYCRR 670.7[c]); and it is further,

ORDERED that the branch of the motion which is to stay Beatrice Degliuomini from, inter alia, dissipating certain partition sale proceeds pending hearing and determination of the appeals and cross appeal is denied; and it is further,

ORDERED that the branch of the motion which is to direct the immediate release of certain funds held by Arnold Ludwig representing use and occupancy payable by Beatrice Degliuomini is denied as academic in light of the temporary restraining order granted in the order to show cause of this court dated February 24, 2006; and it is further,

ORDERED that the branch of the application which is pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to perfect the appeal from the order dated September 9, 2005, is granted, Beatrice Degliuomini's time to perfect that appeal is enlarged until May 15, 2006, and the record or appendix on appeal and her brief must be served and filed on or before that date; and it is further,

ORDERED that the branch of the application which is to enlarge the time of Beatrice Degliuomini to perfect appeals "previously filed and arising out of the same orders previously issued" is denied without prejudice to making a formal motion for that relief (see CPLR 8022[b]).

KRAUSMAN, J.P., LUCIANO, FISHER and DILLON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court