Appellate Division: Second Judicial Department

M39256

E/sl

HOWARD MILLER, J.P.

DAVID S. RITTER

GLORIA GOLDSTEIN

ROBERT J. LUNN, JJ.

2005-03448, 2005-05389 Margarita T. Walter, appellant, v John Walter, respondent. (Index No. 17328/01)

DECISION & ORDER ON MOTION

Motion by the appellant to waive the requirements of 22 NYCRR 670.10.2(f) regarding certification of the appendix, on appeals from an order of the Supreme Court, Westchester County, dated February 25, 2005, and a judgment of the same court, dated May 3, 2005, for a preference in the calendaring of the appeals, and for leave to prosecute the appeals as a poor person. Cross motion by the respondent, inter alia, to strike the appellant's appendix and brief. Application by the respondent to enlarge the time to serve and file a brief.

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

ORDERED that the branch of the motion which is to waive the requirements of 22 NYCRR 670.10.2(f) is denied; and it is further,

ORDERED that on the court's own motion, the appendix is stricken and the appeals will be prosecuted on the original papers which have been filed with the clerk of the court and on the appellant's and the respondent's briefs; and it is further,

ORDERED that the branch of the motion which is for a preference in the calendaring of the appeals is denied; and it is further,

ORDERED that the motion is otherwise denied; and it is further,

ORDERED that the branch of the cross motion which is to strike the appellant's brief is granted, and on or before June 19, 2006, the appellant shall serve and file a replacement brief that complies with the rules of the court (see 22 NYCRR 670.10.3[g]) and which does not refer to matter dehors the record; the appellant is directed to file nine copies of her brief and to serve one copy of the brief on the respondent; the respondent is directed to file nine copies of his brief and to serve one copy of the brief on the appellant; and it is further,

ORDERED that the branches of the cross motion which are to strike the appellant's appendix and to enlarge the time to serve and file a brief, are denied as academic; and it is further,

ORDERED that the cross motion is otherwise denied; and it is further,

ORDERED that the application is denied as academic.

MILLER, J.P., RITTER, GOLDSTEIN and LUNN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court