| Miterko v Peaslee |
| Motion No: 2009-02842 |
| Slip Opinion No: 2010 NY Slip Op 61360(U) |
| Decided on January 19, 2010 |
| Appellate Division, Second Department, Motion Decision |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This motion is uncorrected and is not subject to publication in the Official Reports. |
Appellate Division: Second Judicial Department
M97475
S/sl
MARK C. DILLON, J.P.
ANITA R. FLORIO
JOHN M. LEVENTHAL
SHERI S. ROMAN, JJ.
|
2009-02842 R. Scott Miterko, et al., plaintiffs-respondents, v Sturart D. Peaslee, et al., defendants-respondents, Joe Korbl Plumbing & Heating, Inc., appellant, et al., defendants. (Index No. 36571/07)
| DECISION & ORDER ON MOTION |
Motion by the plaintiffs-respondents, inter alia, to dismiss an appeal from an order of the Supreme Court, Kings County, dated January 16, 2009, on the grounds that the record on appeal is improper and the order on appeal was issued on default and consent, to strike the appellant's brief on the ground that it raises issues not properly before this court, or to enlarge the time to serve and file a brief. Cross motion by the appellant to resettle the transcript of oral argument or to remit the matter to the Supreme Court, Kings County, for de novo oral argument.
Upon the papers filed in support of the motion and the cross motion and the papers filed in opposition or in relation thereto, it is
ORDERED that the branch of the motion which is to dismiss the appeal on the ground that the record is improper and to strike the appellant's brief is granted to the extent that on or before February 22, 2010, the appellant shall remove from the copies of the record on appeal on file with the Clerk of this court pages 156 through 180 or shall serve and file a replacement record which does not contain that material and shall serve and file a replacement brief which does not raise issues relating to the transcript and that branch of the motion is otherwise denied; and it is further,
ORDERED that the branch of the motion which is to enlarge time to serve and file a 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 as the transcript of oral argument does not constitute part of the record on the appeal from the order dated January 16, 2009 (see CPLR 5526).
DILLON, J.P., FLORIO, LEVENTHAL and ROMAN, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court