Appellate Division: Second Judicial Department

M81897

S/sl

PETER B. SKELOS, J.P.

MARK C. DILLON

DANIEL D. ANGIOLILLO

RANDALL T. ENG, JJ.

2008-06901 Mary R. Daccueil, plaintiff-respondent, v Omni Auto Group, Inc., defendant- respondent, Bank of America, appellant. (Index No. 8530/06)

DECISION & ORDER ON MOTION

Motion by the defendant-respondent to dismiss an appeal from an order of the Supreme Court, Kings County, dated June 16, 2008, pursuant to CPLR 5015 on the ground that the appeal does not raise any issue that is cognizable before this court, or, in the alternative, to enlarge the time to serve and file a brief. By decision and order on motion dated January 21, 2009, the branch of the motion which was to dismiss the appeal was held in abeyance and was referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof. By order on application dated January 28, 2009, the appeal was marked withdrawn.

Now, on the court's own motion, it is

ORDERED that so much of the decision and order on motion of this court dated January 21, 2009, as referred the branch of the motion which was to dismiss the appeal to the panel of Justices hearing the appeal for determination upon the argument or submission thereof, is recalled and vacated, and that branch of the motion is denied as academic in light of the withdrawal of the appeal.

SKELOS, J.P., DILLON, ANGIOLILLO and ENG, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court