Appellate Division: Second Judicial Department

M93511

E/sl

MARK C. DILLON, J.P.

THOMAS A. DICKERSON

ARIEL E. BELEN

SHERI S. ROMAN, JJ.

2009-06406 In the Matter of Anthony Scarcella, appellant, v Village of Scarsdale Board of Trustees, respondent. (Index No. 08-21149)

DECISION & ORDER ON MOTION

Motion by the appellant for a preference in the calendaring of an appeal from an order of the Supreme Court, Westchester County, dated June 8, 2009. Cross motion by the respondent to dismiss the appeal on the ground that no appeal lies from a nonfinal order in a proceeding pursuant to CPLR article 78, or to enlarge its time to serve and file a brief. Application by the appellant for leave to appeal to this court from the order dated June 8, 2009, in the event that leave to appeal is necessary.

Upon the papers filed in support of the motion and the cross motion, and the papers filed in opposition thereto, and upon the application, it is

ORDERED that the motion is denied; and it is further,

ORDERED that the branch of the cross motion which is to dismiss the appeal and the application are held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof; and it is further,

ORDERED that the branch of the cross motion which is to enlarge the respondent's time to serve and file a brief is granted, the respondent's time to serve and file a brief is enlarged until November 23, 2009, and the respondent's brief must be served and filed on or before that date.

DILLON, J.P., DICKERSON, BELEN and ROMAN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court