Appellate Division: Second Judicial Department

M45086

Y/sl

HOWARD MILLER, J.P.

GLORIA GOLDSTEIN

WILLIAM F. MASTRO

MARK C. DILLON, JJ.

2005-11972 Linford Wilson, et al., appellants, v Power House Development Corp., respondent. (Index No. 009280/03)

DECISION & ORDER ON MOTION

Motion by the respondent to dismiss an appeal from a judgment of the Supreme Court, Queens County, dated November 3, 2005, on the ground, inter alia, that the appellants failed to properly settle the transcript in accordance with CPLR 5525(c), the appendix contains matter dehors the record, and the appellants' brief refers to matter dehors the record, or in the alternative, to enlarge the time to serve and file a brief.

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, the appellants' appendix and brief are stricken; and it is further,

ORDERED that on or before October 23, 2006, the respondent shall serve the appellants with any corrections to the trial transcript previously served upon the respondent; and it is further,

ORDERED that the motion is denied on condition that, on or before November 22, 2006, the appellants (1) properly settle the transcript pursuant to CPLR 5525 and (2) perfect the appeal by serving and filing (A) a replacement record or appendix (i) containing pages of the transcript that do not contain extraneous markings, and (ii) which does not contain matter dehors the record, and (B) a replacement brief containing a statement of facts with page citations to the replacement record or appendix and which does not refer to matter dehors the record.

MILLER, J.P., GOLDSTEIN, MASTRO and DILLON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court