Appellate Division: Second Judicial Department

M41033

E/sl

HOWARD MILLER, J.P.

THOMAS A. ADAMS

PETER B. SKELOS

JOSEPH COVELLO, JJ.

2005-07902 James Mulhern, plaintiffs, v Manhasset Bay Yacht Club, defendant third-party plaintiff-respondent; Costello Marine Contracting Corp., third-party defendant-appellant. (Index No. 6236/98)

DECISION & ORDER ON MOTION

Motion by the defendant third-party plaintiff-respondent on an appeal from an order of the Supreme Court, Queens County, dated July 11, 2005, to strike the appendix and the appellant's brief on the ground that they contain or refer to matter dehors the record, for leave to file a supplemental appendix containing the decision and order of this court dated October 3, 2005, two orders to show cause dated October 27, 2004, and November 24, 2004, respectively, and the papers filed with this court in connection with those orders to show cause, and two decisions and orders on motion of this court dated November 17, 2004, and December 13, 2004, respectively, and to enlarge the time to serve and file a brief.

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 to strike the appendix and the appellant's brief on the ground that they contain or refer to matter dehors the record is held in abeyance and is referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof; and it is further,

 ORDERED that the branch of the motion which is for leave to file a supplemental appendix containing the decision and order of this court dated October 3, 2005, the two orders to show cause dated October 27, 2004, and November 24, 2004, respectively, and the papers filed with this court in connection with those orders to show cause, and the two decisions and orders on motion of this court dated November 17, 2004, and December 13, 2004, respectively, is granted and on or before July 20, 2006, the defendant third-party plaintiff-respondent shall serve and file a supplemental appendix containing the above-referenced material; and it is further,

ORDERED that the branch of the motion which is to enlarge the time to serve and file a brief is granted, the time of defendant third-party plaintiff-respondent to serve and file a brief is enlarged until July 20, 2006, and the brief must be served and filed on or before that date.

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

ENTER:

James Edward Pelzer

Clerk of the Court