Appellate Division: Second Judicial Department

M41499

A/sl

THOMAS A. ADAMS, J.P.

REINALDO E. RIVERA

STEVEN W. FISHER

MARK C. DILLON, JJ.

2004-05869, 2004-06210, 2005-01029 Robert D. Wilson, et al., appellants-respondents, v Hallen Construction Corporation, respondent- appellant. (Index No. 6828/95)

DECISION & ORDER ON MOTION

Motion by the respondent-appellant on appeals from an order of the Supreme Court, Kings County, dated May 28, 2004, a judgment of the same court entered June 14, 2004, and an appeal and cross appeal from a judgment of the same court dated December 22, 2004, in effect, for leave to reargue a decision and order on motion of this court dated January 30, 2006, which directed it to file all exhibits entered into evidence at trial, and to permit it to file only the exhibits reproduced in the parties' appendices on the ground that it does not have access to the remaining exhibits, and cross motion by the appellants-respondents to dismiss the cross appeal for failure to properly perfect in accordance with the prior decisions and orders on motion of this court, or, in the alternative, for leave to serve and file a supplemental appendix containing the missing exhibits and for leave to serve and file a replacement reply brief, if necessary.

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

ORDERED that the branch of the motion which is for leave to reargue is granted, and upon reargument so much of the order dated January 30, 2006, as directed the respondent-appellant to file with the Clerk of this court all of the trial exhibits is vacated, and the respondent-appellant is directed to file with the Clerk of this court the exhibits contained in the parties' appendices to the extent they have not already been filed with the Clerk; 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 for leave to serve and file a supplemental appendix containing the missing exhibits is granted, and the appellants-respondents shall serve and file the supplemental appendix, in the form appended to the cross motion, on or before August 10, 2006; and it is further,

ORDERED that the branch of the cross motion which is for leave to serve and file a replacement reply brief is granted, and the appellants-respondents, if they be so advised, shall serve and file the replacement reply brief on or before August 25, 2006; and it is further,

ORDERED that the cross motion is otherwise denied.

ADAMS, J.P., RIVERA, FISHER and DILLON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court