Appellate Division: Second Judicial Department

M104100

E/sl

PETER B. SKELOS, J.P.

RUTH C. BALKIN

SHERI S. ROMAN

SANDRA L. SGROI, JJ.

2009-06758 Roug Kang Wang, et al., appellants, v Chien-Tsang Lin, et al., respondents. (Index No. 11000/05)

DECISION & ORDER ON MOTION

Motion by the respondent Tsu Y. Wang to dismiss an appeal from an order of the Supreme Court, Queens County, dated July 2, 2009, on the ground that the record on appeal is inadequate and contains material dehors the record, and to enlarge the time to serve and file a brief. By decision and order on motion dated April 22, 2010, the matter was remitted to the Supreme Court, Queens County, to settle the record and issue a report listing the specific papers upon which it relied in determining the motion that resulted in the order dated July 2, 2009, and the motion was held in abeyance in the interim. The Supreme Court, Queens County, has filed its report dated May 21, 2010.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the report of the Supreme Court, Queens County, dated May 21, 2010, it is

ORDERED that the branch of the motion which is to dismiss the appeal is granted to the extent that the appellants' brief, as well as pages 16 through 23 and pages 150 through 345 of the record on appeal are stricken, and that branch of the motion is otherwise denied; and it is further,

ORDERED that on or before July 12, 2010, the appellants' shall (1) serve and file a replacement brief that does not refer to matter dehors the record, and (2) either (a) remove the stricken material from the copies of the record on appeal filed with the Clerk of the court and serve and file a supplemental record containing a supplemental affidavit of Andrew K. Lipetz dated June 16, 2009, an amended affidavit of Andrew K. Lipetz also dated June 16, 2009, and an order of the Supreme Court, Queens County, dated June 24, 2009, or (b) serve and file a replacement record that does not contain the stricken material and does contain the supplemental affidavit dated June 16, 2009, the amended affidavit also dated June 16, 2009, and the order dated June 24, 2009; and it is further,

ORDERED that the branch of the motion which is to enlarge the movant's time to serve and file a brief is denied as premature.

SKELOS, J.P., BALKIN, ROMAN and SGROI, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court