Appellate Division: Second Judicial Department

M53935

E/sl

REINALDO E. RIVERA, J.P.

ROBERT A. SPOLZINO

GLORIA GOLDSTEIN

MARK C. DILLON, JJ.

2006-11671, 2007-01643 In the Matter of Aaron Westergaard, respondent, v Kerin Westergaard, appellant. (Docket No. F-9148-06)

DECISION & ORDER ON MOTION

Motion by the respondent, inter alia, to dismiss appeals from two orders of the Family Court, Suffolk County, dated November 9, 2006, and January 31, 2007, respectively, on the ground, inter alia, that the appeals are barred by the doctrine of res judicata. Cross motion by the appellant to consolidate the appeals.

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

ORDERED that on the court's own motion, the appeal from the order dated November 9, 2006 (Appellate Division Docket No. 2006-11671), is dismissed, without costs or disbursements, as that order was superseded by the order dated January 31, 2007; and it is further,

ORDERED that the branch of the motion which is to dismiss the appeal from the order dated November 9, 2006, is denied as academic; and it is further,

ORDERED that the motion is otherwise denied; and it is further,

ORDERED that the cross motion is denied as academic; and it is further,

ORDERED that the matter is referred to the Clerk of this court for the issuance of a scheduling order pursuant to § 670.4(a) of the rules of this court (see 22 NYCRR 670.4[a]).

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

ENTER:

James Edward Pelzer

Clerk of the Court