Appellate Division: Second Judicial Department

M41852

S/sl

STEPHEN G. CRANE, J.P.

REINALDO E. RIVERA

PETER B. SKELOS

MARK C. DILLON, JJ.

2005-08825, 2005-09902 Natalie Musick, respondent-appellant, v 330 Wythe Avenue Associates, LLC, appellant-respondent. (Index No. 42279/02)

DECISION & ORDER ON MOTION

On the court's own motion, it is

ORDERED that its decision and order on motion dated May 24, 2006, in the above-entitled case is recalled and vacated, and the following decision and order on motion is substituted therefor:

Motion by 330 Wythe Avenue Associates, LLC, for leave to appeal to this court from an order of the Supreme Court, Kings County, dated July 5, 2005 (Appellate Division Docket No. 2005-08825), and to enlarge the time to perfect that appeal and an appeal from an order of the same court dated September 14, 2005 (Appellate Division Docket No. 2005-09902).

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 appeal is denied; and it is further,

ORDERED that on the court's own motion, the appeal and cross appeal from the order dated July 5, 2005, taken as of right, are dismissed, without costs or disbursements, as that order is not appealable as of right and we decline to grant leave to appeal; and it is further,

ORDERED that the branch of the motion which to enlarge the time to perfect the appeal from the order dated September 14, 2005, is granted and the defendant's time to perfect the appeal is enlarged until July 3, 2006, and the record or appendix on appeal and the defendant's brief must be served and filed on or before that date; and it is further,

ORDERED that the branch of the motion which is to enlarge the time to perfect the

appeal from the order dated July 5, 2005, is denied as academic.

CRANE, J.P., RIVERA, SKELOS and DILLON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court