Appellate Division: Second Judicial Department

M99529

E/sl

REINALDO E. RIVERA, J.P.

ANITA R. FLORIO

HOWARD MILLER

RANDALL T. ENG, JJ.

2009-05322 Yellow Book of New York, L.P., etc., respondent-appellant, v James Cataldo, etc., et al., appellants-respondents. (Index No. 7848/01)

DECISION & ORDER ON MOTION

Motion by the appellant-respondent James Cataldo on an appeal and cross appeal from a judgment of the Supreme Court, Nassau County, entered March 31, 2009, to enlarge the time to perfect his appeal, to waive the requirements of 22 NYCRR 670.10.2(f) regarding certification of the joint record or appendix on appeal, and to compel the respondent-appellant to pay one-half the cost of the transcript and the cost of printing the joint appendix. Cross motion by the respondent-appellant, inter alia, to dismiss the appeal for failure to timely perfect.

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 enlarge the time to perfect the appeal by James Cataldo is granted, the time to perfect the appeal by James Cataldo is enlarged until April 15, 2010, and the joint record or appendix on the appeal (see 22 NYCRR 670.8[c][1]) and James Cataldo's brief must be served and filed on or before that date; and it is further,

ORDERED that the respondent-appellant shall serve and file the answering brief, including the points of argument on the cross appeal, in accordance with the rules of this court (see 22 NYCRR 670.8[c][3]); and it is further,

ORDERED that the branch of the motion which is to waive the requirements of 22 NYCRR 670.10.2(f) regarding certification of the joint record or appendix on appeal is denied with leave to renew when the appeal is perfected; and it is further,

ORDERED that the branch of the motion which is to compel the respondent-appellant to pay one-half the cost of the transcript and the cost of printing the joint record or appendix is granted, and upon filing its brief the respondent-appellant shall provide proof that it has paid one-half the cost of the transcript and the cost of printing the joint record or appendix; and it is further,

ORDERED that the branch of the cross motion which is to dismiss the appeal on the ground that the appellants-respondents have not properly settled the transcript of the minutes of the proceedings below is granted to the extent that the appellants-respondents shall settle the transcript of the minutes of the proceedings below before filing the joint record or appendix on the appeal; and it is further,

ORDERED that the branch of the cross motion which is to dismiss the appeal by Bellmore Equipment, Inc., on the ground that it is not represented by an attorney as required by CPLR 321(a) 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 cross motion is otherwise denied.

RIVERA, J.P., FLORIO, MILLER and ENG, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court