Appellate Division: Second Judicial Department

M97173

E/sl

STEVEN W. FISHER, J.P.

ANITA R. FLORIO

LEONARD B. AUSTIN

SANDRA L. SGROI, JJ.

2009-01318 Neal David Horrell, appellant, v Wanda Jean Behrens Horrell, respondent. (Index No. 17142-06)

DECISION & ORDER ON MOTION

Motion by the appellant on an appeal from an order of the Supreme Court, Suffolk County, dated December 29, 2008, inter alia, to strike the respondent's brief on the ground that it refers to matter dehors the record, to enlarge the time to serve and file a reply brief, and to impose a sanction upon the respondent. Cross motion by the respondent for the court to take judicial notice of certain documents or to enlarge the record to include those documents, and for an award of costs.

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 on the ground that it refers to matter dehors the record is granted, the respondent's brief is stricken, and on or before January 27, 2010, 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 motion is otherwise denied; and it is further,

ORDERED that the cross motion is denied.

FISHER, J.P., FLORIO, AUSTIN and SGROI, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court