Appellate Division: Second Judicial Department

M69305

E/sl

ROBERT A. SPOLZINO, J.P.

EDWARD D. CARNI

THOMAS A. DICKERSON

RANDALL T. ENG, JJ.

2007-04902 In the Matter of Lawrence Tumminello, appellant, v Florence Bolten, respondent. (Index No. 80317/06)

DECISION & ORDER ON MOTION

Motion by the respondent on an appeal from an order of the Supreme Court, Richmond County, dated March 13, 2007, (1) to direct the appellant to serve and file a supplemental record containing an order of the Supreme Court, Kings County, dated September 10, 2002, an affirmation of Robert E. Polistena, dated October 9, 2002, and an affidavit of Lawrence Tumminello, dated November 30, 3006, which are attached to the respondent's moving papers as Exhibits C, D, and E, (2) to strike pages 224 through 231 of the record on appeal, consisting of a sur-reply affirmation of Mary Margaret Looby, dated December 21, 2006, and attached exhibits, and to strike the references to the sur-reply affirmation from the appellant's brief in the second and third sentences of the first full paragraph on page 5 and the first two full sentences on page 10, (3) to enlarge the time to serve and file a brief, (4) and for an award of costs and an attorney's fee and to impose a sanction upon the appellant.

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

ORDERED that the matter is remitted to the Supreme Court, Richmond County, to report on whether the court considered the sur-reply affirmation of Mary Margaret Looby, dated December 21, 2006, and attached exhibits, in determining the motion that resulted in the order dated March 13, 2007, and the respondent's motion is held in abeyance in the interim. The Supreme Court, Richmond County, shall file its report with all convenient speed.

SPOLZINO, J.P., CARNI, DICKERSON and ENG, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court