Rosendale v Harrison and Burrowes Bridge Constructors, I
Motion No: 2009-07820
Slip Opinion No: 2010 NY Slip Op 65115(U)
Decided on March 10, 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.


Supreme Court of the State of New York

Appellate Division: Second Judicial Department

M99587

E/sl

WILLIAM F. MASTRO, J.P.

HOWARD MILLER

LEONARD B. AUSTIN

SHERI S. ROMAN, JJ.

2009-07820, 2009-10470

Donald P. Rosendale, appellant, v Harrison

and Burrowes Bridge Constructors, Inc.,

respondent.

(Index No. 4735/07)

DECISION & ORDER ON MOTION

Motion by the appellant pro se on appeals from two orders of the Supreme Court, Dutchess County, dated July 20, 2009 (Appellate Division Docket No. 2009-07820), and October 8, 2009 (Appellate Division Docket No. 2009-10470), respectively, to waive the requirements of 22 NYCRR 670.10.2(f) regarding certification of the appellant's appendix. Cross motion by the respondent, inter alia, to dismiss the appeals.

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 cross motion which is to dismiss the appeal from the order dated July 20, 2009 (Appellate Division Docket No. 2009-07820), is granted, and the appeal is dismissed without costs or disbursements, on the ground that no appeal lies from an order entered upon the default of the appealing party (see Marino v Termini, 4 AD3d 342); and it is further,

ORDERED that the branch of the cross motion which is to dismiss the appeal from the order dated October 8, 2009 (Appellate Division Docket No. 2009-10470), is held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof; and it is further,

ORDERED that the appellant's appendix and brief are stricken; and it is further,

ORDERED that the cross motion is otherwise denied; and it is further,

ORDERED that the motion is denied with leave to renew after filing a replacement appendix and brief that omits any papers relating to the appeal from the order dated July 20, 2009 (Appellate Division Docket No. 2009-07820), and contains or refers to only material filed with the Supreme Court, Dutchess County, relating to the motion which resulted in the order dated October 8, 2009 (Appellate Division Docket No. 2009-10470).

MASTRO, J.P., MILLER, AUSTIN and ROMAN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court