Appellate Division: Second Judicial Department

M103850

E/sl

JOSEPH COVELLO, J.P.

ANITA R. FLORIO

HOWARD MILLER

RANDALL T. ENG, JJ.

2009-02637, 2009-02639, 2009-02640 2009-03661, 2009-04744 Nella Manko, appellant, v Lenox Hill Hospital, respondent. (Index No. 30972/04)

DECISION & ORDER ON MOTION

Motion by the appellant, inter alia, (1) for leave to appeal to this court from two orders of the Supreme Court, Kings County, dated October 30, 2008 (Appellate Division Docket No. 2009-02637), and December 4, 2008 (Appellate Division Docket No. 2009-02640), respectively, (2) to reinstate an appeal from an order of the same court also dated December 4, 2008 (Appellate Division Docket No. 2009-02639), and, in effect, recall and vacate so much of a decision and order on motion of this court dated March 19, 2010, as dismissed that appeal, (3) to strike the respondent's brief and appendix filed in connection with Appellate Division Docket Nos. 2009-02637 and 2009-02640 on the ground that they are "invalid, false, and contain [matter] dehors the record," (4) for leave to file a supplemental appendix in connection with Appellate Division Docket Nos. 2009-02637 and 2009-02640, and (5) to enlarge the time to serve and file a reply brief in connection with Appellate Division Docket Nos. 2009-02637 and 2009-02640. Separate motion by the appellant, inter alia, (1) for leave to appeal from two orders of the same court, both dated January 22, 2009 (Appellate Division Docket Nos. 2009- 03661 and 2009-04744), (2) to consolidate those appeals with the appeals pending under Appellate Division Docket Nos. 2009-02637 and 2009-02646, (3) to enlarge the time to perfect the appeal filed in connection with Appellate Division Docket No. 2009-03661, and (4) for an award of costs. Separate motion by the appellant (1) to stay all proceedings in the above-entitled action pending hearing and determination of the appeals, and (2) to enlarge the time to serve and file a reply brief in connection with Appellate Division Docket Nos. 2009-02637 and 2009-02640. Separate motion by the appellant to waive the requirements of 22 NYCRR 670.10.2(f) regarding certification of the appellant's appendix filed in connection with Appellate Division Docket No. 2009-04744. Separate motion by the respondent (1) to strike the appellant's appendix and brief filed in connection with Appellate Division Docket No. 2009-04744 and dismiss the appeal on the ground that the appendix is inadequate, or on the ground that they contain or refer to matter dehors the record, and (2) to enlarge the time to serve and file a brief in connection with that appeal. Application by the appellant pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to serve and file a reply brief in connection with Appellate Division Docket No. 2009- 04744.

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

ORDERED that the branches of the motions which are for leave to appeal from the orders dated October 30, 2008 (Appellate Division Docket No. 2009-02637), December 4, 2008 (Appellate Division Docket No. 2009-02640), and January 22, 2009 (Appellate Division Docket Nos. 2009-03661 and 2009-04744), respectively, are held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof; and it is further,

ORDERED that the branch of the motion which is to strike the respondent's appendix filed in connection with Appellate Division Docket Nos. 2009-02637 and 2009-02640 is granted, the appendix is stricken and will not be considered in determining the appeals; and it is further,

ORDERED that the branch of the motion which is to strike the respondent's brief filed in connection with Appellate Division Docket Nos. 2009-02637 and 2009-02640 is granted to the extent that the two sentences beginning on page 10 with "Again, the plaintiff . . ." and concluding on page 11 with "in the Respondents Brief," and the phrase on page 19 "and which were argued against in Lenox Hill's opposition to the underlying motion" are stricken, and on or before July 13, 2010, the respondent shall remove the stricken material from the copies of the respondent's brief filed with the Clerk of the court, and that branch of the motion is otherwise denied without prejudice to raising those arguments in the reply brief; and it is further,

ORDERED that the branches of the motions which are to enlarge the time to serve and file a reply brief in connection with Appellate Division Docket Nos. 2009-02637 and 2009-02640 are granted, the appellant's time to serve and file a reply brief is enlarged until July 29, 2010, and the reply brief must be served and filed on or before that date; and it is further,

ORDERED that the branch of the motion which is to stay all proceedings in the above-entitled action is denied; and it is further,

ORDERED that the branch of the motion which is to enlarge the time to perfect the appeal filed under Appellate Division Docket No. 2009-03661 is granted, the appellant's time to perfect that appeal is enlarged until July 29, 2010, and the record or appendix on that appeal and the appellant's brief must be served and filed on or before that date; and it is further,

ORDERED that the branch of the motion which is for leave to consolidate the appeals is granted to the extent that the appeals under Appellate Division Docket Nos. 2009-02637, 2009-02640, 2009-03661, and 2009-04744 will be calendared together and will be argued or submitted on the same day; and it is further,

ORDERED that the motion to waive the requirements of 22 NYCRR 670.10.2(f) regarding certification of the appellant's appendix filed in connection with Appellate Division Docket No. 2009-04744 is granted; and it is further,

ORDERED that the branch of the motion which is to strike the appellant's appendix and brief filed in connection with Appellate Division Docket No. 2009-04744 and dismiss the appeal on the ground that the appendix is inadequate is denied; and it is further,

ORDERED that the branch of the motion which is to strike the appellant's appendix and brief filed in connection with Appellate Division Docket No. 2009-04744 on the ground that they contain or refer to matter dehors the record 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 enlarge the respondent's time to serve and file a brief in connection with Appellate Division Docket No. 2009-04744 is denied as academic, as the respondent filed a brief on May 24, 2010; and it is further,

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

ORDERED that the application is granted and the reply brief in connection with Appellate Division Docket No. 2009-04744 shall be served and filed on or before July 29, 2010.

COVELLO, J.P., FLORIO, MILLER and ENG, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court