Appellate Division: Second Judicial Department

M63610

E/sl

WILLIAM F. MASTRO, J.P.

STEVEN W. FISHER

EDWARD D. CARNI

WILLIAM E. McCARTHY, 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, inter alia, in effect, to strike the appellants' brief on an appeal from an order of the Supreme Court, Nassau County, dated March 27, 2007, on the ground that the brief refers to matter dehors the record, to dismiss the appeal by the appellant Sun Super Service Centers, Inc., on the ground that it is not aggrieved by the order appealed from, and to enlarge the time to serve and file a brief.

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

ORDERED that the branch of the motion which is to dismiss the appeal by the appellant Sun Super Service Centers, Inc., on the ground that it is not aggrieved by the order appealed from is granted, and the appeal by Sun Super Service Centers, Inc., is dismissed, without costs or disbursements (see CPLR 5511); and it is further,

ORDERED that the branch of the motion which is to strike the brief is granted and on or before January 11, 2008, the appellant LVF Realty Co., Inc., shall serve and file a replacement brief that (1) does not refer to the order of the Supreme Court, Nassau County, dated June 5, 2007, or other matter dehors the record, and (2) does not raise issues that were not raised before the Supreme Court, Nassau County, in connection with the motion that resulted in the order dated March 27, 2007; and it is further,

ORDERED that the branch of the motion which is to enlarge the defendant-respondent's time to serve and file a brief is denied as premature; and it is further,

ORDERED that the motion is otherwise denied.

MASTRO, J.P., FISHER, CARNI and McCARTHY, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court