Appellate Division: Second Judicial Department

M69561

J/cb

A. GAIL PRUDENTI, P.J.

HOWARD MILLER

EDWARD D. CARNI

CHERYL E. CHAMBERS, JJ.

2008-01387, 2008-01844 D Darlene-Marie L. Vitarelle, appellant, v Richard Vitarelle, Jr., etc., et al., respondents. (Index No. 33944/06) (Appeal No. 1) Richard T. Vitarelle, Sr., appellant, v Eileen Vitarelle, et al., respondents. (Index No. 13361/04) (Appeal No. 2)

ECISION & ORDER ON MOTION

Motion by the appellant in Appeal No. 1 on an appeal from an order of the Supreme Court, Suffolk County, dated January 3, 2008, inter alia, to stay her eviction from the subject premises, for leave to prosecute the appeal as a poor person and for the assignment of counsel, and to consolidate this appeal with an appeal entitled Vitarelle v Vitarelle, pending in this court under Appellate Division Docket No. 2008-01844. Motion by the respondents to dismiss the appeal on the ground that it was untimely taken and the notice of appeal was not served.

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

ORDERED that the respondents' motion to dismiss the appeal is denied; and it is further,

ORDERED that on the court's own motion, the appellant's time to serve the notice of appeal is extended (see CPLR 5520[c]), and on or before May 13, 2008, the appellant shall serve the notice of appeal and file an affidavit of service with the Clerk of this court; and it is further,

ORDERED that the branches of the appellant's motion which are for leave to prosecute the appeal on the original papers and to waive the filing fee are denied with leave to renew upon proper papers including the appellant's affidavit setting forth her full financial situation including all assets, both real and personal, as well as any and all sources of income and all expenses; and it is further,

ORDERED that the branch of the motion which is for the assignment of counsel is denied; and it is further,

ORDERED that the branch of the appellant's motion which is for consolidation is granted to the extent that the appeals will be calendared together, and will be argued or submitted on the same day, and that branch of the motion is otherwise denied; and it is further,

ORDERED that the appellant's motion is otherwise denied.

PRUDENTI, P.J., MILLER, CARNI and CHAMBERS, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court