Appellate Division: Second Judicial Department

M44086

C/sl

THOMAS A. ADAMS, J.P.

GLORIA GOLDSTEIN

WILLIAM F. MASTRO

ROBERT A. LIFSON, JJ.

2005-10838 Nissan Matthews, appellant, v Luis F. Castro, et al., defendants third-party plaintiffs-respondents; Erik Rudnicki, et al., third-party defendants-respondents (and a third-party action). (Ind. No. 2967/01)

DECISION & ORDER ON MOTION

Motion by the defendants third-party plaintiffs-respondents, inter alia, in effect, to strike the record and appellant's brief on an appeal from an order of the Supreme Court, Kings County, dated September 21, 2005, on the grounds that the record does not comply with the rules of this court and is incomplete, and the brief refers to matter dehors the record, and to enlarge the time to serve and file an answering brief. Cross motion by the appellant to enlarge the record.

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 record is granted; on or before September 29, 2006, the appellant shall serve and file a replacement record which is correctly paginated and contains all exhibits submitted with the motion papers in the Supreme Court; and it is further,

ORDERED that the branch of the motion which is to strike the footnote 3 of the appellant's brief is granted; on or before September 29, 2006, the appellant shall strike or remove footnote 3 from the copies of the brief filed with this court, or, file a replacement brief which omits the footnote; and it is further,

ORDERED that the time of the defendants third-party plaintiffs-respondents to serve and file a brief is enlarged until October 30, 2006; and it is further,

ORDERED that the motion is otherwise denied; and it is further,

ORDERED that the cross motion is denied.

ADAMS, J.P., GOLDSTEIN, MASTRO and LIFSON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court