Appellate Division: Second Judicial Department

M82887

J/sl

WILLIAM F. MASTRO, J.P.

PETER B. SKELOS

MARK C. DILLON

RANDALL T. ENG, JJ.

2008-06456, 2008-10451 In the Matter of Angela Labita, a/k/a Angelica J. Labita, deceased. Katherine D'Alessandro, appellant; Nicolina D. Hayhurst, respondent. (File No. 340135)

DECISION & ORDER ON MOTION

Motion by the appellant to consolidate an appeal from an order of the Surrogate's Court, Nassau County, dated June 3, 2008, with an appeal from a decree of the same court dated October 16, 2008, respectively, and for leave to prosecute the appeals as a poor person.

Upon the papers filed in support of the motion and no papers having been filed in opposition or relation thereto, it is

ORDERED that on the court's own motion, the appeal from the decree dated October 16, 2008 (Appellate Division Docket No. 2008-10451), is dismissed, without costs or disbursements, on the ground that no appeal lies from a decree entered upon the appellant's default (see CPLR 5511); and it is further,

ORDERED that on the court's own motion, the appeal from the order dated June 3, 2008 (Appellate Division Docket No. 2008-06456), is dismissed, without costs or disbursements, as academic, in light of the dismissal of the appeal from the decree (cf Matter of Aho, 39 NY2d 241, 248); and it is further,

ORDERED that the motion is denied as academic.

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

ENTER:

James Edward Pelzer

Clerk of the Court