Appellate Division: Second Judicial Department

M53217

E/sl

HOWARD MILLER, J.P.

DANIEL D. ANGIOLILLO

EDWARD D. CARNI

THOMAS A. DICKERSON, JJ.

2006-07759 Christopher De Virgilio, plaintiff-respondent, v Four Times Square Center Partners, L.P., et al., defendants, Four Times Square Associates, LLC, defendant third-party plaintiff respondent-appellant; Otis Elevator Company, third-party defendant- appellant-respondent. (Index No. 24982/04)

DECISION & ORDER ON MOTION

Motion by the plaintiff-respondent on an appeal and cross appeal from an order of the Supreme Court, Kings County, dated July 14, 2006, to strike the respondent-appellant's answering brief, including the points of argument on the cross appeal (see 22 NYCRR 670.8[c][3]), on the ground that the respondent-appellant is seeking relief on behalf of a nonappealing party, to hold the appeal in abeyance until conclusion of the trial in the above-entitled action, and 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 the branch of the motion which is to strike the answering brief is held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof; and it is further,

ORDERED that the branch of the motion which is to enlarge the time to serve and file a brief is granted, the plaintiff-respondent's time to serve and file a brief is enlarged until May 14, 2007, and the plaintiff-respondent's brief must be served and filed on or before that date; and it is further,

ORDERED that the motion is otherwise denied.

MILLER, J.P., ANGIOLILLO, CARNI and DICKERSON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court