Appellate Division: Second Judicial Department

M54011

E/sl

ROBERT A. SPOLZINO, J.P.

ANITA R. FLORIO

PETER B. SKELOS

WILLIAM E. McCARTHY, JJ.

2006-11351 Westchester Medical Center, etc., appellant, v Progressive Casualty Insurance Company, respondent. (Index No. 8212/05)

DECISION & ORDER ON MOTION

Motion by the appellant on an appeal from an order of the Supreme Court, Nassau County, dated November 13, 2006, to strike certain material on pages 13 and 14 of the respondent's brief on the ground that it refers to matter dehors the record. Cross motion by the respondent to strike stated portions of the appellant's brief on the grounds that it refers to matter dehors the record or improperly raises arguments for the first time on appeal, and to enlarge the record on appeal to include a certain document.

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

ORDERED that the motion is granted, the material beginning on page 13 with the words "Plaintiff's lawyer's assertion" through the end of page 14 are stricken, and on or before May 15, 2007, the respondent shall either delete or remove that material from the copies of the brief on file with the Clerk of this court or serve and file a replacement brief that does not contain the stricken material; and it is further,

ORDERED that the branch of the cross motion which is to strike portions of appellant's brief on the ground that it refers to material dehors the record is denied; and it is further,

ORDERED that the branch of the cross motion which is to strike portions of appellant's brief on ground it unproperly raised arguments for the first time on appeal is denied, without prejudice to raising the issue in the respondent's brief.

SPOLZINO, J.P., FLORIO, SKELOS and McCARTHY, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court