Appellate Division: Second Judicial Department

M96554

S/sl

RUTH C. BALKIN, J.P.

RANDALL T. ENG

JOHN M. LEVENTHAL

PLUMMER E. LOTT, JJ.

2008-08620 Cathleen Heiny, appellant, v Jay Heiny, respondent. (Index No. 04-6602)

DECISION & ORDER ON MOTION

On the court's own motion, it is

ORDERED that its decision and order on motion dated October 29, 2009, in the above-entitled case is recalled and vacated, and the following decision and order on motion substituted therefor:

Motion by the respondent to dismiss an appeal from a judgment of the Supreme Court, Orange County, dated July 30, 2008, on the ground that the notice of appeal is inadequate, or to direct the appellant to serve and file a supplemental record and to enlarge the time to serve and file a brief.

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

ORDERED that the branch of the motion which is to dismiss the appeal is denied; and it is further,

ORDERED that the branch of the motion which is to direct the appellant to serve and file a supplemental record is granted and on or before February 5, 2010, the appellant shall serve and file a supplemental record containing the findings of fact and conclusions of law of the Supreme Court, Orange County, dated July 30, 2008, as well as the transcripts of the proceedings in the above-entitled action on December 22, 2005, and December 28, 2005, respectively; and it is further,

ORDERED that the respondent shall obtain a copy of the transcript of the proceedings on December 28, 2005, in accordance with the parties stipulation dated December 21, 2009, and shall provide a copy of that transcript to the appellant's attorney on or before January 22, 2010; and it is further,

ORDERED that if the respondent does not provide a copy of the December 28, 2005, transcript to the appellant by January 22, 2010, and does not move for additional relief, including an extension of time, by January 29, 2010, the appellant may file a supplemental record that does not include the December 28, 2005, transcript; and it is further,

ORDERED that the branch of the 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 March 2, 2010, and the respondent's brief must be served and filed on or before that date, and the appellant's time to serve and file a reply brief is enlarged until March 29, 2010.

BALKIN, J.P., ENG, LEVENTHAL and LOTT, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court