Appellate Division: Second Judicial Department

M51347

S/sl

WILLIAM F. MASTRO, J.P.

GLORIA GOLDSTEIN

ROBERT A. LIFSON

EDWARD D. CARNI, JJ.

2006-04880 Kathleen Condon, respondent, v Joseph Condon, appellant. (Index No. 31136/93)

DECISION & ORDER ON MOTION

On the court's own motion, it is

ORDERED that its decision and order on motion dated January 17, 2007, in the above-entitled case is recalled and vacated, and the following decision and order on motion is substituted therefor:

Appeal by the defendant from a qualified domestic relations order of the Supreme Court, Kings County, dated April 11, 2006. By order to show cause dated November 21, 2006, the parties or their attorneys were directed to show cause why an order should or should not be made and entered dismissing the above-entitled appeal on the grounds that (1) no appeal lies as of right from a qualified domestic relations order (see Gormley v Gormely, 238 AD2d 545), and leave to appeal has not been granted, and (2) no appeal lies from an order entered upon the stipulation of the appealing party (see CPLR 5511). Application by the defendant pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to perfect the appeal.

Upon the order to show cause and the papers submitted in response thereto and the application, it is

ORDERED that on the court's own motion, the notice of appeal is treated as an application for leave to appeal to this court, and leave to appeal is granted (see CPLR 5701[c]); and it is further,

ORDERED that the order to show cause to dismiss the appeal is denied; and it is further,

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

ORDERED that the appellant's time to perfect the appeal is enlarged until March 19, 2007, and the record or appendix on appeal (see 22 NYCRR 670.8[c][1]) and the appellant's brief must be served and filed on or before that date.

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

ENTER:

James Edward Pelzer

Clerk of the Court