Appellate Division: Second Judicial Department

M40280

S/sl

ROBERT W. SCHMIDT, J.P.

ROBERT A. SPOLZINO

ROBERT J. LUNN

JOSEPH COVELLO, JJ.

2006-01382 Congregation Yetev Lev D'Satmar of Kiryas Joel, Inc., et al., respondents, v Congregation Yetev Lev D'Satmar, Inc., et al., appellants, et al., defendants. (Index No. 05-4495)

DECISION & ORDER ON MOTION

Motion by the respondent Congregation Yetev Lev D'Satmar, Inc., by Berl Friedman, President, on an appeal from an order of the Supreme Court, Orange County, dated February 9, 2006, to strike from the joint appendix (1) a supplemental affirmation of Rabbi Moses Friedman dated February 7, 2006, which appears on pages A-2426 through A-2431 of the appendix, and (2) a letter from the law firm of Rider, Weiner & Frankel, P.C., to Justice Rosenwasser, dated November 18, 2005, which appears on pages A-1763 through A-1764 of the appendix, on the ground that this material is dehors the record. By decision and order on motion dated May 17, 2006, the motion was referred to James Edward Pelzer, the Clerk of this court, as referee, to hear and report on the issue of whether those papers were considered by the Supreme Court, Orange County, in determining the motions which resulted in the order dated February 9, 2006. The referee has filed his report. The opposition papers have been treated as applications to, alternatively, enlarge the record to include all the letters submitted by the parties to the Supreme Court, Orange County, in advance of and in connection with the proceeding held by the Supreme Court, Orange County, on November 30, 2005, and the supplemental affirmation of Rabbi Moses Friedman.

Upon the papers filed in support of the motion and the applications and the papers filed in opposition or relation thereto, and upon the report of the referee, it is

ORDERED that the applications are granted and the record is enlarged to include all the letters submitted by the parties to the Supreme Court, Orange County, in advance of and in connection with the proceeding held by the Supreme Court, Orange County, on November 30, 2005, and the supplemental affirmation of Rabbi Moses Friedman; and it is further,

ORDERED that on or before June 9, 2006, the appellants shall serve and file a supplemental appendix containing any additional letters submitted by the parties to the Supreme Court, Orange County, in advance of and in connection with the proceeding held by the Supreme Court, Orange County, on November 30, 2005, that are not already included in the appendices previously served and filed; and it is further,

ORDERED that the motion is denied as academic; and it is further,

ORDERED that the appeal is ordered on the calendar of June 20, 2006, at 3 o'clock in the afternoon.

SCHMIDT, J.P., SPOLZINO, LUNN and COVELLO, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court