Appellate Division: Second Judicial Department

M48594

S/cb

A. GAIL PRUDENTI, P.J.

WILLIAM F. MASTRO

STEVEN W. FISHER

ROBERT J. LUNN, JJ.

2006-01572 Nina Tutarashvili, plaintiff, v Avraham Barzilay, et al., defendants. Steven V. Podolsky, nonparty-appellant; John P. Bostany, nonparty-respondent. (Index No. 37186/02)

DECISION & ORDER ON MOTION

Motion by the respondent to dismiss an appeal from an order of the Supreme Court, Kings County, dated January 18, 2006, on the ground that the record is incomplete. By decision and order on motion dated September 22, 2006, the matter was remitted to the Supreme Court, Kings County, to report on whether the court considered the respondent's affirmation dated January 12, 2006, in determining the motion that is the subject of the order appealed from, and the motion was held in abeyance in the interim. The Supreme Court, Kings County, has filed its report.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the report of the Supreme Court, Kings County, it is

ORDERED that the motion is granted to the extent that on or before January 12, 2007, the appellant shall serve and file a supplemental record containing the affirmation dated January 12, 2006, and the exhibit thereto, which are appended as Exhibit A to the instant motion, and the motion is otherwise denied.

PRUDENTI, P.J., MASTRO, FISHER and LUNN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court