Appellate Division: Second Judicial Department

M83196

E/nl

ROBERT A. SPOLZINO, J.P.

ANITA R. FLORIO

RANDALL T. ENG

ARIEL E. BELEN, JJ.

2008-02362, 2008-02363, 2008-04432 Craig Miller, appellant, v Cruise Fantasies, Ltd., et al., respondents. (Index No. 5683/07)

DECISION & ORDER ON MOTION

Motion by the respondents to strike the appellant's appendix and dismiss appeals from two orders of the Supreme Court, Westchester County, dated February 15, 2008, and February 19, 2008, respectively, and a judgment of the same court dated March 25, 2008, or to enlarge the time to serve and file a brief, for an award of costs and an attorney's fee, and to direct "Ms. Goodman to file a full notice of appearance." Separate motion by the respondents to strike the appellant's appendix and brief, or to enlarge the time to serve and file a brief, for an award of costs and an attorney's fee, and to direct "Ms. Goodman to file a full notice of appearance."

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

ORDERED that the branch of the motion which is to strike the appellant's appendix on the ground that the transcripts contained therein are not settled is denied in light of the parties' stipulation settling the transcripts, dated March 3, 2009; and it is further,

ORDERED that the branches of the motions which are to strike the appellant's appendix on the grounds that it contains matter dehors the record and that it is inadequate are denied, without prejudice to the respondents filing their own appendix, on condition that on or before April 15, 2009, the appellant (1) remove pages A578 through A608 from the copies of the appellant's appendix filed with the Clerk of the court or serve and file a replacement appendix that does not contain material dehors the record, and (2) serve and file a supplemental appendix containing the affidavit of Daniel Farkas or include the affidavit in the replacement appendix noted above; and it is further,

ORDERED that the branch of the motion which is to strike the appellant's brief on the ground that it refers to matter dehors the record is granted to the extent that the references on pages 63 and 64 of the appellant's brief referring to pages A578 through A608 of the appellant's appendix are stricken, and on or before April 15, 2009, the appellant shall remove those references from the copies of the appellant's brief filed with the Clerk of the court or serve and file a replacement brief that does not contain those references; and it is further,

ORDERED that the branch of the motion which is to direct "Ms. Goodman to file a full notice of appearance" is denied on condition that on or before April 15, 2009, the appellant remove the cover sheet of the copies of the appellant's appendices and briefs filed with the Clerk of the court and replace them with cover sheets that omit any reference indicating that they were prepared with the assistance of counsel or serve and file replacement appendices and briefs that do not contain those references; and it is further,

ORDERED that the branches of the motion which are to enlarge the respondents' time to serve and file a brief are granted, the respondents' time to serve and file a brief is enlarged until May 20, 2009, and the respondents' brief must be served and filed on or before that date; and it is further,

ORDERED that the motions are otherwise denied.

SPOLZINO, J.P., FLORIO, ENG and BELEN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court