Appellate Division: Second Judicial Department

M100679

E/sl

A. GAIL PRUDENTI, P.J.

STEVEN W. FISHER

SHERI S. ROMAN

SANDRA L. SGROI, JJ.

2009-01101 Rick A. Schwab, respondent, v Beth Ann Phillips, defendant; Peter J. Mollo, etc., nonparty-appellant. (Index No. 10944/05)

DECISION & ORDER ON MOTION

Motion by the respondent, inter alia, to dismiss an appeal from an order of the Supreme Court, Kings County, dated January 6, 2009, on the ground that the order dated January 6, 2009, was superceded by a corrected order of the same court dated January 28, 2009, to strike the nonparty-appellant's brief and appendix on the ground that the appendix contains matter dehors the record and is inadequate, for an award of costs and to impose a sanction upon the nonparty-appellant, and to enlarge the time to serve and file a brief.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that on the court's own motion, the notice of appeal from the order dated January 6, 2009, is deemed to be a premature notice of appeal from the corrected order dated January 28, 2009 (see CPLR 5520[c]); and it is further,

ORDERED that the branch of the motion which is to strike the nonparty-appellant's appendix is granted to the extent that on or before April 30, 2010, the nonparty-appellant (1) shall serve and file a supplemental appendix containing (a) the corrected order of the Supreme Court, Kings County, dated January 28, 2009, and (b) the stipulation dated December 14, 2006, regarding escrow of the proceeds of the sale of certain personal property, (2) shall remove page 272 from the copies of the appendix filed with the Clerk of the court, and (3) shall replace pages 37 through 41, 68 through 72, and 106 through 127 of the copies of the appendix filed with the Clerk of the court with pages that do not contain handwritten markings or notations; and it is further,

ORDERED that the branch of the motion which is to enlarge the respondent's time to serve and file a brief is granted, the respondent's time to serve and file a brief is enlarged until June 1, 2010, and the respondent's brief must be served and filed on or before that date; and it is further,

ORDERED that the motion is otherwise denied.

PRUDENTI, P.J., FISHER, ROMAN and SGROI, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court