Appellate Division: Second Judicial Department

M37435

A/sl

ANITA R. FLORIO, J.P.

HOWARD MILLER

THOMAS A. ADAMS

PETER B. SKELOS, JJ.

2005-01129 David R. Caplan, appellant, v Lawrence E. Tofel, et al., respondents. (Index No. 1726/03)

DECISION & ORDER ON MOTION

Motion by the respondents on an appeal from an amended judgment of the Supreme Court, Dutchess County, dated December 22, 2004, to dismiss the appeal on the ground that the appellant failed to comply with so much of a decision and order on motion of this court dated December 13, 2005, as directed the appellant to serve and file a supplemental record on appeal, or, in the alternative, for leave to the respondents to serve and file a supplemental record on appeal containing certain memoranda of law filed with the motion papers submitted to the Supreme Court which resulted in the orders of the Supreme Court, Dutchess County, dated November 3, 2003, and May 6, 2004, respectively.

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 the respondents to serve and file a supplemental record containing certain memoranda of law filed with the motion papers submitted to the Supreme Court which resulted in the orders of the Supreme Court, Dutchess County, dated November 3, 2003, and May 6, 2004, respectively, is granted, and on or before April 5, 2006, the respondents shall serve and file a supplemental record containing the subject memoranda of law annexed to the instant motion papers as Exhibits C, D, and E; and it is further,

 ORDERED that the motion is otherwise denied.

FLORIO, J.P., MILLER, ADAMS and SKELOS, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court