Appellate Division: Second Judicial Department

M92635

S/sl

MARK C. DILLON, J.P.

JOSEPH COVELLO

DANIEL D. ANGIOLILLO

LEONARD B. AUSTIN, JJ.

2008-09458 Helen Dublis, respondent, v Joseph Bosco, appellant, et al., defendants. (Index No. 25605/04)

DECISION & ORDER ON MOTION

Motion by the respondent on an appeal from a judgment of the Supreme Court, Queens County, entered September 17, 2008, to strike the appellant's brief or stated portions of the brief on the ground that it refers to matter dehors the record, to dismiss the appeal on the ground that the appellant did not properly settle the transcript, or to dismiss the appeal on the ground that the record on appeal contains documents dehors the record. Application by the appellant pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to serve and file a reply brief. By decision and order on motion dated August 26, 2009, the matter was remitted to the Supreme Court, Queens County, to hear and report on whether the documents contained on pages 793 through 794 of the record on appeal are properly part of the respondent's trial exhibit 1, and the respondent's motion and the appellant's application were held in abeyance in the interim. Application by the appellant to recall and vacate so much of the decision and order on motion dated August 26, 2009, as remitted the matter to the Supreme Court, Queens County, and for leave to delete pages 793 through 794 of the record on appeal.

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

ORDERED that the application is granted and so much of the decision and order on motion as remitted the matter to the Supreme Court, Queens County, is recalled and vacated; and it is further,

ORDERED that on or before October 13, 2009, the appellant shall delete pages 793 through 794 of the copies of the record on file with the Clerk of this court and any references to those pages in the copies of the appellant's brief on file with the Clerk of this court; and it is further,

ORDERED that the respondent's motion is granted to the extent that pages 793 through 794 of the record and any references thereto in the appellant's brief are stricken, and the motion is otherwise denied; and it is further,

ORDERED that the appellant's application to enlarge the time to serve and file a reply brief is granted, and the reply brief shall be served and filed on or before October 13, 2009.

DILLON, J.P., COVELLO, ANGIOLILLO and AUSTIN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court