Appellate Division: Second Judicial Department

M78096

E/sl

STEVEN W. FISHER, J.P.

RUTH C. BALKIN

WILLIAM E. McCARTHY

JOHN M. LEVENTHAL, JJ.

2008-00487, 2008-02499 David Bruce McMahan, respondent-appellant, v Elena McMahan, appellant-respondent. (Appeal No. 1) David Bruce McMahan, appellant-respondent, v Elena McMahan, respondent-appellant. (Appeal No. 2) (Index No. 05-399)

DECISION & ORDER ON MOTION

Appeals and cross appeals from two orders of the Supreme Court, Westchester County, entered December 4, 2007, and March 6, 2008, respectively. Motion by Elena McMahan, in effect, to dismiss the appeal from the order entered March 6, 2008, and to enlarge the time to serve and file an answering brief, including her points of argument on the cross appeals (see 22 NYCRR 670.8[c][3]).

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

ORDERED that on the court's own motion, the appeal and cross appeal from the order entered December 4, 2007 (Appellate Division Docket No. 2008-00487), are dismissed, without costs or disbursements, for failure to timely perfect the same in accordance with the rules of this court (see 22 NYCRR 670.8[e]); and it is further,

ORDERED that the branch of the motion which is, in effect, to dismiss the appeal from the order entered March 6, 2008 (Appellate Division Docket No. 2008-02499), is held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof; and it is further,

ORDERED that the branch of the motion which is to enlarge the time to serve and file an answering brief, including the points of argument on the cross appeal (see 22 NYCRR 670.8[c][3]) is granted, and Elena McMahan's answering brief with respect to the order entered March 6, 2008 (Appellate Division Docket No. 2008-02499), shall be served and filed on or before December 3, 2008.

FISHER, J.P., BALKIN, McCARTHY and LEVENTHAL, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court