Appellate Division: Second Judicial Department

M65624

E/sl

REINALDO E. RIVERA, J.P.

ROBERT A. SPOLZINO

DAVID S. RITTER

WILLIAM E. McCARTHY, JJ.

2007-06958 Geraldine Blair, et al., respondents, v Otto Brehm, Inc., appellant. (Index No. 05-10322)

DECISION & ORDER ON MOTION

Motion by the respondents to dismiss an appeal from an order of the Supreme Court, Westchester County, entered June 27, 2007, or, in the alternative, to vacate the stay of all proceedings in the above-entitled action granted by a decision and order on motion of this court dated November 23, 2007, and, in effect, to strike the record on appeal, supplemental record, and appellant's brief, and to direct the appellant to file a replacement record and 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 vacate the stay granted by decision and order on motion dated November 23, 2007, is granted, and the stay is vacated; and it is further,

ORDERED that the branch of the motion which is, in effect, to strike the record on appeal, supplemental record, and appellant's brief, and to direct the appellant to file a replacement record and brief is granted, and on or before February 22, 2008, the appellant must serve and file (1) a replacement record that contains the papers and exhibits on which the order entered June 27, 2007, was founded and does not contain matter dehors the record (see CPLR 5526; 22 NYCRR 670.10.2[b]) and (2) a replacement brief that does not refer to matter dehors the record; and it is further,

ORDERED that the motion is otherwise denied.

RIVERA, J.P., SPOLZINO, RITTER and McCARTHY, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court