Appellate Division: Second Judicial Department

M94371

E/sl

REINALDO E. RIVERA, J.P.

HOWARD MILLER

THOMAS A. DICKERSON

SHERI S. ROMAN, JJ.

2009-01393 Stephen Bentz, appellant, v Jennifer Bentz, respondent. (Index No. 14347-05)

DECISION & ORDER ON MOTION

Motion by the appellant on an appeal from an order of the Supreme Court, Suffolk County, dated December 29, 2008, to strike the respondent's brief on the ground that it refers to matter dehors the record, and to enlarge the time to serve and file a reply brief. Cross motion by the respondent to strike the record on appeal and the appellant's brief, and to waive the motion filing fee.

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

ORDERED that the branch of the motion which is to strike the respondent's brief is granted, the respondent's brief is stricken, and on or before December 14, 2009, the respondent shall serve and file a replacement brief that does not refer to matter dehors the record; and it is further,

ORDERED that the branch of the motion which is to enlarge the time to serve and file a reply brief is denied as premature; and it is further,

ORDERED that the branch of the cross motion which is to waive the motion filing fee is granted; and it is further,

ORDERED that the cross motion is otherwise denied.

RIVERA, J.P., MILLER, DICKERSON and ROMAN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court