Appellate Division: Second Judicial Department

M64494

S/sl

WILLIAM F. MASTRO, J.P.

STEVEN W. FISHER

EDWARD D. CARNI

WILLIAM E. McCARTHY, JJ.

2007-09693, 2007-10263 Alan Chernow, respondent, v Herman Chernow, appellant. (Index No. 14396/07)

DECISION & ORDER ON MOTION

Motion by the appellant for a preference in the calendaring of appeals from two orders of the Supreme Court, Kings County, dated September 24, 2007, and October 15, 2007, respectively. Cross motion by the respondent to strike pages 13 and 39 through 44 of the appellant's appendix and the second full paragraph on page 2 of the appellant's brief on the grounds that they contain or refer to matter dehors the record, for leave to file an appendix, and to enlarge the time to serve and file a brief. By decision and order on motion dated December 10, 2007, the matter was remitted to the Supreme Court, Kings County, to report on the issue of whether it considered the letter of Robert Gutman dated April 20, 2007, and the undated "Petitioner's Memo of Law in Support of Motion to Dismiss & Summary Judgment" of Henry O'Brien, in determining the motions that resulted in the orders which are the subject of the appeals, and the motion for a preference and cross motion, inter alia, to strike the appellant's appendix and brief were held in abeyance in the interim. The Supreme Court, Kings County, has filed its report.

Upon the papers filed in support of the motion and cross motion and the papers filed in opposition thereto, and upon the report of the Supreme Court, Kings County, it is

ORDERED that the motion for a preference is granted and the appeal shall be calendared expedtiously; and it is further,

ORDERED that the branch of the cross motion which is to strike portions of the appellant's appendix and brief is denied; and it is further,

ORDERED that the branch of the cross motion which is for leave to file a supplemental appendix is denied as unnecessary (see CPLR 5528[b]); and it is further,

ORDERED that the branch of the cross 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 February 1, 2008, and the respondent's brief shall be served and filed on or before that date.

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

ENTER:

James Edward Pelzer

Clerk of the Court