Appellate Division: Second Judicial Department

M60438

E/sl

DAVID S. RITTER, J.P.

FRED T. SANTUCCI

ROBERT A. LIFSON

MARK C. DILLON, JJ.

2006-07328 Geraldo Tavares, respondent, v Julio Hilario, appellant. (Index No. 40912/02)

DECISION & ORDER ON MOTION

Motion by the respondent, in effect, to recall and vacate so much of a decision and order on motion of this court entitled "In the Matter of the Dismissal of Causes for Failure to Perfect - March 2007 Calendar," dated April 2, 2007, as dismissed an appeal from an order of the Supreme Court, Kings County, dated May 11, 2006, pursuant to 22 NYCRR 670.8(e) for failure to timely perfect the same, to reinstate the appeal, and to dismiss the appeal pursuant to CPLR 1021 on the ground that no legal representative has been substituted in place of the deceased appellant.

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

ORDERED that the branches of the motion which are, in effect, to recall and vacate so much of a decision and order on motion dated April 2, 2007, as dismissed the appeal and to reinstate the appeal are granted; and it is further,

ORDERED that so much of the decision and order on motion of this court dated April 2, 2007, as dismissed the instant appeal, is recalled and vacated; and it is further,

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

ORDERED that the appellant's counsel shall notify this court when an administrator is appointed and on December 26, 2007, the appellant's counsel shall notify this court regarding the status of proceedings to obtain an administrator, if an administrator has not been appointed by that time.

RITTER, J.P., SANTUCCI, LIFSON and DILLON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court