Appellate Division: Second Judicial Department

M83396

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ROBERT A. SPOLZINO, J.P.

STEVEN W. FISHER

JOSEPH COVELLO

RANDALL T. ENG, JJ.

2008-05813, 2009-01355 Alice Greene, etc., et al., appellants, v Yvette Martas, etc., et al., respondents. (Index No. 43279/01)

DECISION & ORDER ON MOTION

Separate motions by the respondents Yvette Martas, Michael Silverstein, New York University OB/GYN Associates, and New York University Medical Center and the respondents Gwyneth Levy, David Horowitz, and Pediatric Associates of NYC to dismiss an appeal from a judgment of the Supreme Court, Kings County, entered April 14, 2008 (Appellate Division Docket No. 2008-05813), for failure to timely perfect or, in effect, to dismiss the appeal on the ground that the judgment entered April 14, 2008, has been superseded by a judgment of the same court entered December 18, 2008 (Appellate Division Docket No. 2009-01355). Separate motion by Silberstein, Awad & Miklos, P.C., former attorney for the appellants on the appeal from the judgment entered April 14, 2008, and attorney of record on an appeal from the judgment entered December 18, 2008, inter alia, to deem the notice of appeal for the judgment entered December 18, 2008, to be timely filed, and for leave to withdraw as counsel on the appeal from the judgment entered December 18, 2008.

Upon the papers filed in support of the motions, no papers having been filed in opposition or in relation to the respondents' motion, and the papers filed in opposition to the motion by Silberstein, Awad & Miklos, P.C., it is

ORDERED that the branches of the respondents' motions which are, in effect, to dismiss the appeal from the judgment entered April 14, 2008, on the ground that the judgment entered April 14, 2008, has been superseded by the judgment entered December 18, 2008, are granted, and the appeal from the judgment entered April 14, 2008 (Appellate Division Docket No. 2008-05813), is dismissed, without costs or disbursements; and it is further,

ORDERED that the respondents' motions are otherwise denied; and it is further,

ORDERED that the branch of the motion by Silberstein, Awad & Miklos, P.C., which is for leave to withdraw as counsel on the appeal from the judgment entered December 18, 2008 (Appellate Division Docket No. 2009-01355), is granted, and Silberstein, Awad & Miklos, P.C., is relieved from representing the appellants with respect to that appeal; and it is further,

ORDERED that on or before March 30, 2009, Silberstein, Awad & Miklos, P.C., is directed to serve its clients by one of the methods specified in CPLR 2103(c), with a copy of this decision and order on motion and shall file proof of such service with the Clerk of this court; and it is further,

ORDERED that no further proceedings shall be taken against the appellants, without leave of the court, until the expiration of 30 days after service upon them of a copy of this decision and order on motion; and it is further,

ORDERED that the branch of the motion by Silberstein, Awad & Miklos, P.C., which is to deem the notice of appeal for the judgment entered December 18, 2008, to be timely filed is denied as unnecessary; and it is further,

ORDERED that the motion by Silberstein, Awad & Miklos, P.C., is otherwise denied as academic.

SPOLZINO, J.P., FISHER, COVELLO and ENG, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court