Appellate Division: Second Judicial Department

M93540

E/sl

REINALDO E. RIVERA, J.P.

ANITA R. FLORIO

HOWARD MILLER

L. PRISCILLA HALL, JJ.

2009-02112, 2009-02377 Craig Martin, plaintiff-appellant, v George Burns, respondent; Arthur Morrison, nonparty-appellant. (Index No. 08-16282)

DECISION & ORDER ON MOTION

Motion by the respondent to dismiss an appeal from an order of the Supreme Court, Westchester County, dated January 30, 2009 (Appellate Division Docket No. 2009-02112), on the grounds that the record on appeal is inadequate, that the order was superseded by an order and judgment (one paper) of the same court dated February 17, 2009 (Appellate Division Docket No. 2009-02377), and that the brief of the nonparty-appellant raises issues by which he is not aggrieved, to strike certain material from the record on appeal on the ground that it is dehors the record and to direct the nonparty-appellant to file a supplemental record, to strike the nonparty-appellant's brief, and to enlarge the respondent's time to serve and file a brief. Separate motion by the nonparty-appellant, in effect, to deem the notice of appeal from the order dated January 30, 2009, to be a notice of appeal from the order and judgment dated February 17, 2009.

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

ORDERED that the branch of the respondent's motion which is to direct the nonparty-appellant to file a supplemental record containing the affidavit of Eric H. Holtzman dated December 17, 2008, with annexed exhibits, is granted, and on or before November 5, 2009, the nonparty-appellant shall serve and file that supplemental record; and it is further,

ORDERED that the branch of the respondent's 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 December 7, 2009, and the respondent's brief must be served and filed on or before that date; and it is further,

ORDERED that the respondent's motion is otherwise denied; and it is further,

ORDERED that the nonparty-appellant's motion is granted (see CPLR 5512), and the nonparty-appellant shall include a copy of the order and judgment dated February 17, 2009, in the supplemental record to be filed with this court.

RIVERA, J.P., FLORIO, MILLER and HALL, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court