Appellate Division: Second Judicial Department

M39083

O/nal

ANITA R. FLORIO, J.P.

GABRIEL M. KRAUSMAN

PETER B. SKELOS

JOSEPH COVELLO, JJ.

2005-09657 In the Matter of Pat Tuccio, a/k/a Patsy Tuccio, a/k/a Pasquale Tuccio, deceased. Patricia Hagen Tuccio, respondent; Patricia Tuccio, appellant. (File No. 550 P 2003)

DECISION & ORDER ON MOTION

Motion by the appellant to recall and vacate a decision and order on motion of this court dated October 28, 2005, which dismissed an appeal from an order of the Surrogate's Court, Suffolk County, dated September 28, 2005, to reinstate the appeal, and to deem the notice of appeal from the order to be a premature notice of appeal from a decree of the same court dated September 30, 2005.

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

ORDERED that on the court's own motion, the notice of appeal from the order is deemed to be a notice of appeal from the decree dated September 30, 2005 (see CPLR 5512); and it is further,

ORDERED that the motion is granted, the decision and order dated October 28, 2005, is recalled and vacated, and the appeal is reinstated; and it is further,

ORDERED that the appeal shall be perfected on or before June 16, 2006, and the record or appendix on the appeal and the appellant's brief must be served and filed on or before that date.

FLORIO, J.P., KRAUSMAN, SKELOS and COVELLO, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court