Appellate Division: Second Judicial Department

M52004

S/sl

HOWARD MILLER, J.P.

ROBERT A. SPOLZINO

GLORIA GOLDSTEIN

MARK C. DILLON, JJ.

2005-07602 Michael McDonald, plaintiff-respondent, v Eric D. Mauss, defendant, Consolidated Edison Company of New York, Inc., defendant third-party plaintiff-respondent, Tri-Messine Construction Co., defendant third-party defendant-appellant, Safeway Construction Enterprises, Inc., defendant third-party defendant-respondent. (Appeal No. 1) 2006-02201 Michael McDonald, plaintiff-respondent, v Eric D. Mauss, defendant, Consolidated Edison Company of New York, Inc., defendant third-party plaintiff-appellant, Tri-Messine Construction Co., et al., defendants third-party defendants-respondents. (Appeal No. 2) 2006-02202 Michael McDonald, plaintiff-respondent, v Eric D. Mauss, defendant, Consolidated Edison Company of New York, Inc., defendant third-party plaintiff-respondent, Tri-Messine Construction Co., defendant third-party defendant-respondent, Safeway Construction Enterprises, Inc., defendant third-party defendant-appellant. (Appeal No. 3) (Index No. 31189/02)

DECISION & ORDER ON MOTION

On the court's own motion, it is

ORDERED that its decision and order on motion dated May 24, 2006, in the above-entitled case is recalled and vacated, and the following decision and order on motion is substituted therefor:

Motion by the plaintiff-respondent on appeals by (1) Consolidated Edison Company of New York from an order of the Supreme Court, Queens County, dated June 6, 2005 (Appellate Division Docket No. 2006-02201), (2) Tri-Messine Construction Co. from an order of the same court, also dated June 6, 2005 (Appellate Division Docket No. 2005-07602) and (3) Safeway Construction Enterprises, Inc., from an order of the same court also dated June 6, 2005 (Appellate Division Docket No. 2006-02202), to correct the record and briefs filed in connection with the above entitled appeals to reflect the parties proper status on each appeal and to strike material from the joint record on the ground that it is dehors the record. Cross motion by Tri-Messine Construction Co. to enlarge the record on appeal to include the material which the respondent claims is dehors the record.

Upon the papers filed in support of the motion and the cross motion and the papers filed in opposition or relation thereto, it is

ORDERED that the branch of the motion which is to correct the record and briefs to reflect the parties proper status on each appeal is granted and the parties status has been corrected as indicated above; and it is further,

ORDERED that the branch of the motion which is to strike portions of the joint record and the cross motion are referred to the panel of Justices hearing the appeals for determination upon the argument or submission of the appeals.

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

ENTER:

James Edward Pelzer

Clerk of the Court