Appellate Division: Second Judicial Department

M72176

E/sl

A. GAIL PRUDENTI, P.J.

DAVID S. RITTER

ANITA R. FLORIO

WILLIAM E. McCARTHY, JJ.

2007-02257, 2008-03545 Tur-Lab Construction Corp., respondent, v 280 Realty, LLC, appellant. (Index No. 18037/05)

DECISION & ORDER ON MOTION

Motion by the appellant on appeals from two orders of the Supreme Court, Kings County, dated January 29, 2007, and February 15, 2008, respectively, to stay enforcement of so much of the order dated January 29, 2007, as directed the distribution of certain escrow proceeds, to consolidate the appeals or, in the alternative, to direct that the appeals be calendared together, with leave to perfect the appeal from the order dated February 15, 2008, upon briefs that contain references to the record for the appeal from the order dated January 29, 2007, and a supplemental record. Separate motion by the appellant for leave to file a supplemental record on the appeal from the order dated January 29, 2007. Cross motion by the respondent to strike the reply brief filed in connection with the appeal from the order dated January 29, 2007, on the ground that it refers to matter dehors the record or to strike stated portions of the reply brief, and for an award of an attorney's fees and costs.

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

ORDERED that the branch of the motion which is to stay enforcement of so much of the order dated January 29, 2007, as directed the distribution of certain escrow proceeds is denied; and it is further,

ORDERED that the branch of the motion which is to consolidate the appeals or to direct that the appeals be calendared together is granted to the extent that the appeals will be calendared together and will be argued or submitted on the same day, the briefs filed in connection with the appeal from the order dated February 15, 2008, may contain references to the record filed in connection with the appeal from the order dated January 29, 2007, and the appellant may perfect the appeal from the order dated February 15, 2008, upon a supplemental record containing any additional documents necessary to perfect that appeal, and that branch of the motion is otherwise denied as academic; and it is further,

ORDERED that the motion for leave to file a supplemental record on the appeal from the order dated January 29, 2007, is denied; and it is further,

ORDERED that the branch of the cross motion which is to strike the reply brief filed in connection with the appeal from the order dated January 29, 2007, or to strike stated portions of the reply brief is granted to the extent that the reply brief is stricken and on or before July 8, 2008, the appellant shall serve and file a replacement reply brief that does not refer to matter dehors the record, and that branch of the cross motion is otherwise denied as academic; and it is further,

ORDERED that the branch of the cross motion which is for an award of an attorney's fees and costs is denied.

PRUDENTI, P.J., RITTER, FLORIO and McCARTHY, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court