Appellate Division: Second Judicial Department

M48406

E/sl

WILLIAM F. MASTRO, J.P.

REINALDO E. RIVERA

STEVEN W. FISHER

MARK C. DILLON, JJ.

2006-03693 Elmer Argueta, plaintiff-respondent, v Pomona Panorama Estates, Ltd., defendant third-party plaintiff-appellant; S & B Professional Construction, etc., third-party defendant-respondent. (Index No. 04-764)

DECISION & ORDER ON MOTION

Motion by the third-party defendant-respondent on an appeal from an order of the Supreme Court, Rockland County, dated March 7, 2006, to strike Point III. B. of the appellant's brief on the ground that it improperly raises a new argument for the first time on appeal and to enlarge the time to serve and file a brief.

Upon the papers filed in support of the motion and no papers having been filed in opposition or relation thereto, it is

ORDERED that the motion is granted; and it is further,

ORDERED that Point III. B. of the appellant's brief is stricken, and on or before January 3, 2007, the appellant shall either delete or remove Point III.B. 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 third-party defendant-respondent's time to serve and file a brief is enlarged until February 2, 2007, and the brief must be served and filed on or before that date.

MASTRO, J.P., RIVERA, FISHER and DILLON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court