Appellate Division: Second Judicial Department

M100222

E/sl

WILLIAM F. MASTRO, J.P.

THOMAS A. DICKERSON

ARIEL E. BELEN

CHERYL E. CHAMBERS, JJ.

2009-07149 In the Matter of Silas H. Rhodes, deceased. Anthony P. Rhodes, et al., appellants; Steven Rhodes, et al., respondents. (File No. 1745/07)

DECISION & ORDER ON MOTION Motion to Dismiss Appeal

Motion by the respondents Jennifer Rhodes and Benjamin Rhodes to dismiss an appeal from a decree of the Surrogate's Court, Westchester County, dated April 16, 2009, on the ground that the appellants are not aggrieved or lack standing to appeal in their individual capacity and on the ground that the record on appeal is inadequate, or, in the alternative, to enlarge their time to serve and file a brief. Cross motion by the appellants for leave to file a supplemental record containing certain documents.

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 dismiss the appeal on the ground that the appellants are not aggrieved or lack standing to appeal 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 branch of the motion which is to dismiss the appeal on the ground that the record on appeal is inadequate is denied; and it is further,

ORDERED that the branch of the motion which is to enlarge the time to serve and file a brief is granted, the respondents' time to serve and file their respective briefs is enlarged until May 13, 2010, and the respondents' briefs must be served and filed on or before that date; and it is further,

ORDERED that the cross motion is granted and on or before April 13, 2010, the appellants shall serve and file a supplemental record containing the following documents:

(1) the petitioner's memorandum of law dated January 22, 2008;

(2) verified answer, objections and counterclaim of Steven Rhodes and Karen Rhodes dated March 18, 2008;

(3) memorandum of law of Steven Rhodes and Karen Rhodes dated May 16, 2008;

(4) memorandum of law of Jennifer Rhodes and Benjamin Rhodes dated June 13, 2008;

(5) the petitioner's reply memorandum of law dated June 13, 2008;

(6) Guardian Ad Litem's report dated July 24, 2008;

(7) Guardian Ad Litem's affidavit of legal services dated September 8, 2008;

(8) affidavit of Robert Sylvor dated October 17, 2008; and

(9) supplemental affirmation of Peter K. Kelly dated October 27, 2008.

MASTRO, J.P., DICKERSON, BELEN and CHAMBERS, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court