Appellate Division: Second Judicial Department

M96998

E/sl

MARK C. DILLON, J.P.

HOWARD MILLER

JOSEPH COVELLO

CHERYL E. CHAMBERS, JJ.

2009-07207, 2009-07208, 2009-07209, 2009-07210, 2009-07211 Denise Austin-Cook, appellant, v Amie Hinspeter, as Administrator of Estate of George R. Cook, respondent. (Index No. 07-4608)

DECISION & ORDER ON MOTION Motion to Dismiss Appeal

Motion by the respondent to dismiss appeals from a judgment of the Supreme Court, Orange County, dated April 30, 2009, findings of fact and conclusions of law also dated April 30, 2009, and an order of the same court also dated April 30, 2009, and two money judgments of the same court also dated April 30, 2009, on the ground that no appeal lies from a judgment or order entered upon the consent of the appealing party. Application by the appellant for poor person relief and the assignment of counsel.

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

ORDERED that on the court's own motion, the appeal from the findings of fact and conclusions of law dated April 30, 2009 (Appellate Division Docket No. 2009-07208), is dismissed (see Schicchi v J.A. Green Constr. Co.,100 AD2d 509), without costs or disbursements, and the branch of the motion which is to dismiss that appeal on the ground that no appeal lies from a judgment or order entered upon the consent of the appealing party is denied as academic; and it is further,

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

ORDERED that the branch of the application which is for leave to prosecute the appeals on the original papers is granted, and the appeals will be heard on the original papers (including the transcript of the proceedings, if any) and on the briefs of the parties, who are directed to file nine copies of their respective briefs and to serve one copy on each other; and it is further,

ORDERED that the branches of the application which are to waive payment of the filing fee, for free transcripts, and for the assignment of counsel are denied; and it is further,

ORDERED that the appellant's time to perfect the appeals by causing the original papers constituting the record on the appeals to be filed in the office of the Clerk of this court (see 22 NYCRR 670.9[d][2]) and by serving and filing her brief on the appeal is enlarged until March 31, 2010.

DILLON, J.P., MILLER, COVELLO and CHAMBERS, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court