Appellate Division: Second Judicial Department

M43860

E/sl

FRED T. SANTUCCI, J.P.

GABRIEL M. KRAUSMAN

DANIEL F. LUCIANO

WILLIAM F. MASTRO, JJ.

2005-02073 Ernesto Zelaya, respondent, v New York New York Auto Body, Inc., et al., appellants. (Index No. 23549/98)

DECISION & ORDER ON MOTION

Motion by the respondent to dismiss an appeal from a judgment of the Supreme Court, Queens County, entered January 5, 2005, on the grounds that the appendix is inadequate and that the appellants did not settle the trial transcript.

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

ORDERED that on the court's own motion, on or before September 20, 2006, the respondent shall serve the appellant with any corrections, if any, to the trial transcript previously served on the respondent; and it is further,

ORDERED that the motion is denied on condition that on or before October 20, 2006, the appellants (1) file a copy of the complete settled transcript with the Clerk of this court, and (2) either (a) serve and file a replacement appendix containing the relevant portions of the properly-settled transcript, (b) serve and file a supplemental appendix containing the relevant portions of the properly-settled transcript and remove from the original appendix those pages containing portions of the unsettled trial transcript, or (c) serve and file an affirmation in accordance with the provisions of CPLR 5525(c)(2) in the event that there are no proposed amendments or objections to the transcript by the respondent; and it is further,

ORDERED that on the court's own motion, the respondent's time to serve and file a brief is enlarged until November 20, 2006, and the respondent's brief must be served and filed on or before that date.

SANTUCCI, J.P., KRAUSMAN, LUCIANO and MASTRO, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court