Appellate Division: Second Judicial Department

M43739

E/sl

A. GAIL PRUDENTI, P.J.

STEPHEN G. CRANE

WILLIAM F. MASTRO

PETER B. SKELOS, JJ.

2005-09902, 2006-04738 Natalie Musick, respondent, v 330 Wythe Avenue Associates, LLC, appellant. (Index No. 42279/02)

DECISION & ORDER ON MOTION

Motion by the respondent on appeals from an order of the Supreme Court, Kings County, dated September 14, 2005, and a judgment of the same court dated March 30, 2006, to strike the appellant's brief on the ground that it refers to matter dehors the record, to enlarge the time to serve and file a brief, and for leave to file late notices of cross appeal from the order and the judgment.

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 appellant's brief is granted to the extent that the following material is stricken from the appellant's brief:

(1) The last sentence of the first paragraph on page 9, which begins with the words "This request" and ends with "("June 21, 2002 letter.")";

(2) The sentence starting at the bottom of page 10, which begins "Eisenberg instructed Fokas," and continues on the first two lines on page 11, ending with the words "accrued carrying charges";

(3) The sixth paragraph on page 14, which begins with the words "Neither Plaintiff";

(4) The point heading on page 26, stating "Plaintiff did not accept the conditions in Fokas' June 21, 2002 letter," the last full paragraph on page 26 and the paragraph which begins on the last line of page 26 and ends on page 27;

(5) The first full paragraph on page 30, which begins with the words "Neither plaintiff," and footnote 11 on page 30;

(6) The first two sentences of the first full paragraph on page 38, beginning with the words "This memorandum" and ending with the words "as a buyer," and footnote 15 on page 38;

and that branch of the motion is otherwise denied; and it is further,

ORDERED that on or before September 26, 2006, the appellant shall either delete or remove that material from the copies of the appellant's brief on file with the Clerk of this court or serve and file a replacement brief that does not contain the stricken material; and it is further,

ORDERED that the branch of the motion which to enlarge the time to serve and file a brief is granted, the respondent's time to serve and file a brief is enlarged until October 26, 2006, and the respondent's brief shall be served and filed on or before that date; and it is further,

ORDERED that the branch of the motion which is for leave to file late notices of cross appeal from the order and the judgment is denied (see CPRL 5513).

PRUDENTI, P.J., CRANE, MASTRO and SKELOS, JJ., concur.

James Edward Pelzer

Clerk of the Court