Appellate Division: Second Judicial Department

M64253

E/sl

REINALDO E. RIVERA, J.P.

DAVID S. RITTER

MARK C. DILLON

EDWARD D. CARNI, JJ.

2007-00884 Metropolitan Bank & Trust Company, appellant, v Rolf W. Wittich, et al., respondents. (Appeal No. 1) 2007-10659 Metropolitan Bank & Trust Company, respondent, v Rolf W. Wittich, et al., appellants. (Appeal No. 2) (Index No. 2193-04)

DECISION & ORDER ON MOTION

Motion by Bell Oil Terminal, Inc., Ameropan Oil Corp., and Ameropan Realty Corporation to dismiss an appeal from an order of the Supreme Court, Suffolk County, dated November 28, 2006 (Appellate Division Docket No. 2007-00884), on the ground that the appeal has been rendered academic, or, in the alternative, to consolidate that appeal with appeal from an order of the same court dated October 19, 2007 (Appellate Division Docket No. 2007-10659), to allow the appeals from the order dated October 19, 2007, to be perfected using the record on appeal submitted in connection with the appeal from the order dated November 28, 2006, supplemented by a record containing the papers submitted in connection with the motion to reargue, which was determined by the order dated October 19, 2007, and to enlarge their time to serve and file a brief as respondents on the appeal from the order dated November 28, 2006. Application by Metropolitan Bank & Trust Company to direct the movants to pay a share of the cost of the record on appeal submitted in connection with the appeal from the order dated November 28, 2006.

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

ORDERED that the branch of the motion which is to dismiss the appeal from the order dated November 28, 2006, is held in abeyance and referred to the panel of Justices hearing that appeal for determination upon the argument or submission thereof; and it is further,

ORDERED that the branch of the motion which is to consolidate the appeals is granted to the extent that the appeals will be calendared together, and will be argued or submitted on the same day; and it is further,

ORDERED that the branch of the motion which is to allow the appeals from the order dated October 19, 2007, to be perfected using the record on appeal submitted in connection with the appeal from the order dated November 28, 2006, supplemented by a record containing the papers submitted in connection with the motion to reargue, is granted and the joint record on the appeals from the order dated October 19, 2007, may contain only the papers submitted to the Supreme Court, Suffolk County, in connection with the motion to reargue, and the briefs filed in connection with the appeals from the order dated October 19, 2007, may refer to the record filed in connection with the appeal from the order dated November 28, 2006; and it is further,

ORDERED that the appeals from the order dated October 19, 2007, shall be perfected on or before February 11, 2008, and the joint record or appendix on the appeals and the appellants' briefs must be served and filed on or before that date; and it is further,

ORDERED that the branch of the motion which is to enlarge the movants' time to serve and file a brief as respondents on the appeal from the order dated November 28, 2006, is granted, the time to serve and file a brief is enlarged until January 28, 2008, and the brief must be served and filed on or before that date; and it is further,

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

ORDERED that the application is denied.

RIVERA, J.P., RITTER, DILLON and CARNI, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court