Appellate Division: Second Judicial Department

M70217

E/sl

STEVEN W. FISHER, J.P.

JOSEPH COVELLO

DANIEL D. ANGIOLILLO

ARIEL E. BELEN, JJ.

2007-06214 In the Matter of Anibal Tellez, deceased. Mayank V. Munsiff, appellant: Josephine Tellez, et al., respondents. (File No. 1390/04)

DECISION & ORDER ON MOTION

Motion by the appellant pro se on an appeal from an order of the Surrogate's Court, Queens County, dated June 4, 2007, to waive the requirements of 22 NYCRR 670.10.2(f) regarding certification of the record on appeal. Cross motion by the respondent to dismiss the appeal on the grounds, inter alia, no appeal lies from an order denying reargument, or, in the alternative, to direct the appellant to correct the record on appeal and to enlarge the respondent's time to serve and file a brief.

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

ORDERED that the branch of the cross motion which is to dismiss the appeal on the ground, inter alia, that no appeal lies from an order denying reargument is denied without prejudice to raising the issues in the brief; and it is further,

ORDERED that the branch of the cross motion which is to direct the appellant to correct the record on appeal is granted to the extent that on or before June 9, 2008, the appellant (1) removes pages 523 through 528 from the copies of the record on appeal filed with the Clerk of the court, and (2) serves and files a supplemental record containing (a) notice of settlement dated December 1, 2006, with proposed order and decree, (b) Exhibits A and B to the appellant's reply affirmation dated February 13, 2007, (c) notice of entry of the order dated April 3, 2007, and (d) Exhibit C to the appellant's affirmation in support of the motion to correct mistakes dated April 11, 2007, and that branch of the cross motion is otherwise denied; and it is further,

ORDERED that the motion to waive the requirements of 22 NYCRR 670.10.2(f) regarding certification of the record on appeal is granted on condition that the appellant comply with the above decretal paragraph; and it is further,

ORDERED that the respondent's time to serve and file a brief is enlarged until July 9, 2008, and the respondent's brief must be served and filed on or before that date.

FISHER, J.P., COVELLO, ANGIOLILLO and BELEN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court