Appellate Division: Second Judicial Department

M60533

E/sl

ROBERT W. SCHMIDT, J.P.

GLORIA GOLDSTEIN

PETER B. SKELOS

STEVEN W. FISHER, JJ.

2007-04203 State of New York, plaintiff-respondent, v LVF Realty Co., Inc., et al., appellants, Sunoco, Inc., defendant-respondent. (Index No. 12328/02)

DECISION & ORDER ON MOTION

Motion by the defendant-respondent to dismiss an appeal from an order of the Supreme Court, Nassau County, dated March 27, 2007, on the ground that the order has been superseded by a judgment of the same court entered June 22, 2007, or, in the alternative, to enlarge the time to serve and file a brief. Application by the defendant-respondent to dismiss the appeal on the grounds that the appellants are not aggrieved by the order dated March 27, 2007, and that the record on appeal is inadequate.

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

ORDERED that the branch of the motion which is to dismiss the appeal on the ground that the order has been superseded by a judgment of the same court entered June 22, 2007, is held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the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 respondent's time to serve and file a brief is enlarged until October 29, 2007, and the respondent's brief must be served and filed on or before that date; and it is further,

ORDERED that the application is denied without prejudice to seeking the same relief by motion (see CPLR 8022) on or before October 29, 2007.

SCHMIDT, J.P., GOLDSTEIN, SKELOS and FISHER, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court