Appellate Division: Second Judicial Department

M94429

E/sl

REINALDO E. RIVERA, J.P.

HOWARD MILLER

THOMAS A. DICKERSON

SHERI S. ROMAN, JJ.

2009-06457 In the Matter of Calvin E. Benjamin, deceased. George B. Headly, nonparty-appellant; William Gilkes, et al., respondents. (File No. 905/03)

DECISION & ORDER ON MOTION

Motion by the appellant to enlarge the record on an appeal from of an order of the Surrogate's Court, Kings County, dated May 1, 2009, to include certain documents.

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

ORDERED that the branch of the motion which is to enlarge the record on the appeal to include an order of the Supreme Court, Kings County, dated September 6, 2005, an order to show cause of the Supreme Court, Kings County, dated August 17, 2005, and accompanying affirmation of Lee M. Nigen dated August 15, 2005, and affidavit of William Gilkes dated August 15, 2005, with exhibits, accompanying the order to show cause, affidavit of Janet Benjamin dated September 2, 2005, and affirmation of George B. Headley dated September 2, 2005, summons and complaint both dated August 1, 2005, verified answer dated September 20, 2005, verified answer to the counterclaim dated September 20, 2005, notice of motion dated October 11, 2005, and affidavits of Janet Benjamin, and Ralph Harris, dated October 11, 2005, and affirmation of George B. Headley dated October 11, 2005, and an order of the Supreme Court, Kings County, dated December 29, 2005, is granted; and it is further,

ORDERED that the branch of the motion which is to enlarge the record to include the documents annexed to the motion papers as Exhibits 9 through 15 is denied as unnecessary as those documents are properly part of the record; and it is further,

ORDERED that the motion is otherwise denied.

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

ENTER:

James Edward Pelzer

Clerk of the Court