| Osborne v Evans |
| Motion No: 2006-05088 |
| Slip Opinion No: 2007 NYSlipOp 67451(U) |
| Decided on April 16, 2007 |
| Appellate Division, Second Department, Motion Decision |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This motion is uncorrected and is not subject to publication in the Official Reports. |
Appellate Division: Second Judicial Department
M53253
J/cb
HOWARD MILLER, J.P.
ROBERT A. SPOLZINO
GLORIA GOLDSTEIN
WILLIAM E. McCARTHY, JJ.
|
2006-05088 Hilda Osborne, respondent, v Martha Evans, appellant. (Index No. 6154/04)
| DECISION & ORDER ON MOTION |
Motion by the respondent to dismiss an appeal from an order of the Supreme Court, Queens County, dated April 17, 2006, on the ground that the appendix and the appellant's brief contains or refers to matter dehors the record. By decision and order on motion dated February 20, 2007, the matter was remitted to the Supreme Court, Queens County, to report on the issue of whether it considered the "Sur-reply Affirmation in Response to Plaintiff's Affidavit in Opposition to Defendant's Motion for Renewal" of Andrea J. Robinson dated February 21, 2006, in determining the motion that resulted in the order dated April 17, 2006, and the motion was held in abeyance in the interim. The Supreme Court, Queens 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, Queens County, dated March 30, 2007, it is
ORDERED that the motion is granted to the extent that the appendix and brief filed by the appellant is stricken, and on or before May 29, 2007, the appellant shall serve and file a (1) replacement appendix that (a) does not contain the documents found at pages 13 through 46, 102 through 112, and 114 through 140 of the stricken appendix, and (b) contains the complete affirmation of Anthony Mordente dated February 14, 2006, with all attached exhibits, and (2) a replacement brief which shall not refer to matter dehors the record, and the motion is otherwise denied; and it is further,
ORDERED that in the event the appellant does not serve and file a replacement appendix and replacement brief on or before May 29, 2007, the court, on its own motion, may dismiss the appeal.
MILLER, J.P., SPOLZINO, GOLDSTEIN and McCARTHY, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court