Appellate Division: Second Judicial Department

M101747

E/sl

JOSEPH COVELLO, J.P.

DANIEL D. ANGIOLILLO

RUTH C. BALKIN

SANDRA L. SGROI, JJ.

2009-11087, 2009-11088, 2009-11089, 2009-11091, 2010-01344 In the Matter of Robert B. Withers, appellant, v Gail R. Withers, respondent. (Proceeding No. 1) In the Matter of Gail R. Withers, respondent, v Robert B. Withers, appellant. (Proceeding No. 2) (Docket No. F-10697/08)

DECISION & ORDER ON MOTION

Motion by the appellant on appeals from five orders of the Family Court, Westchester County, dated August 3, 2009 (Appellate Division Docket No. 2009-11087), August 4, 2009 (two orders) (Appellate Division Docket Nos. 2009-11088 and 2009-11089), November 23, 2009 (Appellate Division Docket No. 2010-01344), and December 2, 2009 (Appellate Division Docket No. 2009-11091), respectively, to stay enforcement of the order dated November 23, 2009, and "the child support order pursuant to the 2002 agreement," and to reduce the purge amount from the sum of $83,590.04 to the sum of $40,000. Separate motion by the appellant, in effect, to reinstate the appeal from the order dated August 4, 2009 (Appellate Division Docket No. 2009-11088), that dismissed the petition for downward modification, to deem the notice of appeal from that order to be a notice of appeal from the order dated November 23, 2009, and to consolidate the appeals. Cross motion by the respondent, inter alia, to dismiss the appeal from the order dated November 23, 2009, as untimely taken. Separate cross motion by the respondent, inter alia, to dismiss the appeal from the order dated November 23, 2009, as untimely taken, and to impose a sanction upon the appellant and for an attorney 's fee pursuant to 22 NYCRR 202.16(2),(3). Application by the appellant pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to perfect the appeals.

Upon the papers filed in support of the motions and the cross motions, and the papers filed in opposition thereto, and upon the application, it is

ORDERED that the branch of the motion which is to reduce the purge amount from the sum of $83,590.04 to the sum of $40,000, is granted, and the purge amount is reduced to the sum of $40,000, which has already been paid, pending hearing and determination of the appeal; and it is further,

ORDERED that the branch of the motion which is, in effect, to reinstate the appeal from the order dated August 4, 2009 (Appellate Division Docket No. 2009-11088), that dismissed the petition for downward modification is granted on the ground that the order is appealable since the objections to that order were reviewed by a judge of the Family Court (see Family Ct Act § 439[e]), so much of the decision and order on motion dated December 16, 2009, as dismissed that appeal is recalled and vacated, and that appeal is reinstated; and it is further,

ORDERED that the branch of the motion which is to consolidate the appeals is denied as unnecessary as appeals maybe consolidated as of right (see 22 NYCRR 670.7[c]); and it is further,

ORDERED that the branches of the cross motions which are to dismiss the appeal from the order dated November 23, 2009 (Appellate Division Docket No. 2010-01344), as untimely taken are granted and that appeal is dismissed, without costs or disbursements; and it is further,

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

ORDERED that the application is granted and the appellant's time to perfect the appeals is enlarged until May 24, 2010, and the record or appendix on the appeals and the appellant's brief must be served and filed on or before that date.

COVELLO, J.P., ANGIOLILLO, BALKIN and SGROI, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court