Appellate Division: Second Judicial Department

M101866

E/sl

A. GAIL PRUDENTI, P.J.

MARK C. DILLON

RANDALL T. ENG

SHERI S. ROMAN, JJ.

2009-05575 James P. McGee, appellant, v James Dunn, respondent. (Index No. 2198/08)

DECISION & ORDER ON MOTION

Motion by the respondent to dismiss an appeal from an order of the Supreme Court, Dutchess County, dated November 5, 2008, on the ground that the appeal was untimely taken (see CPLR 5513), or on the ground that the record on appeal is incomplete, and to enlarge the time to serve and file a brief. By decision and order on motion dated February 1, 2010, the matter was referred to the Supreme Court, Dutchess County, to hear and report on the issue of if and when the order with notice of entry was served by the respondent on the appellant, and the motion was held in abeyance in the interim.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the report of the Supreme Court, Dutchess County, dated March 16, 2010, it is

ORDERED that the branch of the motion which is to dismiss the appeal is denied; 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 May 24, 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., DILLON, ENG and ROMAN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court