Appellate Division: Second Judicial Department

M42572

S/sl

HOWARD MILLER, J.P.

STEPHEN G. CRANE

GLORIA GOLDSTEIN

ROBERT A. SPOLZINO, JJ.

2005-03065 Nu Li Lin, appellant, v New York City Housing Authority, respondent. (Index No. 29917/00)

DECISION & ORDER ON MOTION

Motion by the respondent-appellant on an appeal from an order of the Supreme Court, Kings County, dated February 2, 2005, inter alia, to dismiss the appeal of the appellant-respondent on the ground that the record on appeal contain matters dehors the record and the appellant's brief refers to that material, or, to strike pages 77 through 93, 96 through 125, and 127 through 138 of the record on appeal on the ground that those pages contain matters dehors the record, to strike portions of the appellant-respondent's brief, including pages 3, 4, 7, 8 and 10, which refer to matters dehors the record, or to direct the appellant-respondent to serve and filed a new record and brief which do not contain or refer to matters dehors the record, and to enlarge the time to serve and file a respondent-appellant's brief. By decision and order on motion dated March 13, 2006, the matter was remitted to the Supreme Court, Kings County to report on whether it considered the following pages of the record in determining the motion which resulted in the order dated February 2, 2005: pages 77- 93, 96-125, and 127-138, and the motion was held in abeyance in the interim. The Supreme Court, Kings County, has filed its report.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the report of the Supreme Court, Kings County, it is

ORDERED that the branch of the motion which is to strike the appellant-respondent's record and brief is granted to the extent that (1) pages 77- 93, 96 - 125, and 127 - 138 of the record are stricken and (2) the appellant-respondent's brief is stricken, and on or before August 31, 2006, the appellant-respondent shall (1) either remove pages 77- 93, 96 - 125, and 127 - 138 , from the copies of the record on appeal on file with the Clerk of this court or shall serve and file a replacement record which omits the above pages and (2) serve and file a replacement brief which does not refer to material dehors the record; and it is further,

ORDERED that the branch of the motion which is to enlarge time is granted and the respondent-appellant shall serve and file its answering brief, including its points of argument on the cross appeal, in accordance with the rules of this court (see 22 NYCRR 670.8[c][3]); and it is further,

ORDERED that the motion is otherwise denied.

MILLER, J.P., CRANE, GOLDSTEIN and SPOLZINO, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court