| Parker v Top Homes, Inc. |
| Motion No: 2007-00109 |
| Slip Opinion No: 2007 NYSlipOp 85747(U) |
| Decided on December 10, 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
M63130
E/sl
HOWARD MILLER, J.P.
STEPHEN G. CRANE
MARK C. DILLON
RUTH C. BALKIN, JJ.
|
2007-00109, 2007-08318, 2007-08322 Jimmy Parker, respondent, v Top Homes, Inc., appellants, et al., defendants. (Index No. 25251/06)
| DECISION & ORDER ON MOTION |
Motion by the respondent to dismiss appeals from a judgment of the Supreme Court, Kings County, dated April 24, 2007, and an order of the same court dated July 31, 2007, on the ground that no appeal lie from the order, and any issues that could be raised on the appeal from the judgment are precluded by the doctrine of Bray v Cox (38 NY2d 350). Cross motion by the appellant 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 - July 2007 Calendar," dated August 13, 2007, as dismissed an appeal from an order of the same court dated November 28, 2006, pursuant to 22 NYCRR 670.8(e) for failure to timely perfect the same, to reinstate that appeal, and to enlarge the time to perfect that appeal.
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 denied; and it is further,
ORDERED that the branches of the cross motion which are to recall and vacate so much of the decision and order on motion dated August 13, 2007, as dismissed the appeal from the order dated November 28, 2006 (Appellate Division Docket No. 2007-00109), and to reinstate that appeal are granted; and it is further,
ORDERED that on the court's own motion, the appeal from the order dated November 28, 2006 (Appellate Division Docket No. 2007-00109), is dismissed, without costs or disbursements, on the ground that it was superseded by the judgment dated April 24, 2007 (Matter of Aho, 39 NY2d 241, 248); and it is further,
ORDERED that the branch of the cross motion which is to enlarge the time to perfect the appeal from the order dated November 28, 2006, is denied as academic.
MILLER, J.P., CRANE, DILLON and BALKIN, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court