Appellate Division: Second Judicial Department

M89641

S/nl

FRED T. SANTUCCI, J.P.

DANIEL D. ANGIOLILLO

RUTH C. BALKIN

CHERYL E. CHAMBERS, JJ.

2008-04187 Progressive Northeastern Insurance Company, respondent, v North State Autobahn, Inc., etc., et al., appellants. (Appeal No. 1) 2009-00904, 2009-04958 Progressive Northeastern Insurance Company, appellant, v North State Autobahn, Inc., etc., et al., respondents. (Appeal Nos. 2 and 3) (Index No. 8750/05)

DECISION & ORDER ON MOTION

Motion by the defendants to consolidate appeals from (1) two orders of the Supreme Court, Westchester County, dated April 18, 2008, and December 23, 2008, respectively, and (2) an order and judgment (one paper) of the same court entered January 12, 2009, for leave to remove pages 411-1613 of the record filed in connection with the order and judgment entered January 12, 2009 (Appellate Division Docket No. 2009-04958), and to file a supplemental record on that appeal, and to enlarge their time to serve and file a respondents' brief on that appeal.

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 order dated December 23, 2008 (Appellate Division Docket No. 2009-00904), is dismissed, without costs or disbursements, as that order is not appealable as of right and leave to appeal has not been granted (see CPLR 5701); and it is further,

ORDERED that the branch of the motion which is for leave to remove pages 411 through1613 of the record filed in connection with the order and judgment entered January 12, 2009 (Appellate Division Docket No. 2009-04958), and to file a supplemental record on that appeal is granted, and or before August 7, 2009, the parties shall remove pages 411 through 1613 of the record and file a supplemental record in accordance with the stipulation dated June 29, 2009, appended to the instant motion papers; and it is further,

ORDERED that the defendants' time to serve and file a respondents' brief on the appeal from the order and judgment entered January 12, 2009, is enlarged until August 28, 2009, and the defendants' brief shall be served and filed on or before that date; the plaintiff's reply brief shall be served and filed on or before September 18, 2009; and it is further,

ORDERED that the branch of the motion which is to consolidate the appeals is denied; and it is further,

ORDERED that on the court's own motion, the appeals shall be heard together, and shall be argued or submitted on the same day.

SANTUCCI, J.P., ANGIOLILLO, BALKIN and CHAMBERS, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court