Appellate Division: Second Judicial Department

M105930

E/ct

FRED T. SANTUCCI, J.P.

JOHN M. LEVENTHAL

CHERYL E. CHAMBERS

LEONARD B. AUSTIN, JJ.

2009-02791, 2009-08305 Joseph O. Yebo, appellant, v Helene M. Cuadra, respondent. (Index No. 19237/02)

DECISION & ORDER ON MOTION

Motion by the appellant, in effect, to recall and vacate so much of a decision and order on motion of this court, entitled "In the Matter of the Dismissal of Causes for Failure to Perfect - January 2010 Calendar," dated February 19, 2010, as dismissed an appeal from an order of the Supreme Court, Kings County, dated February 9, 2009 (Appellate Division Docket No. 2009-02791), to reinstate the appeal, to enlarge the time to perfect the appeal, to enlarge the time to perfect an appeal from an order of the same court dated July 29, 2009 (Appellate Division Docket No. 2009-08305), and for poor person relief. Cross motion by the respondent to dismiss the appeal from the order dated July 29, 2009 (Appellate Division Docket No. 2009-08305), for failure to timely perfect and on the ground that the issues to be raised are precluded by dismissal of the appeal from the order dated February 9, 2009, for failure to timely perfect.

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

ORDERED that the branches of the motion which are, in effect, to recall and vacate so much of the decision and order on motion dated February 19, 2010, as dismissed the appeal from the order dated February 9, 2009 (Appellate Division Docket No. 2009-02791), to reinstate the appeal, and to enlarge the time to perfect that appeal are denied; and it is further,

ORDERED that the branch of the motion which is to enlarge the time to perfect the appeal from the order dated July 29, 2009 (Appellate Division Docket No. 2009-08305), is granted, the appellant's time to perfect that appeal is enlarged until August 26, 2010, and the record or appendix on the appeal and the appellant's brief must be served and filed on or before that date; and it is further,

ORDERED that no further enlargement of time shall be granted; and it is further,

ORDERED that the branch of the motion which is for poor person relief is denied as academic with respect to the appeal from the order dated February 9, 2009, and denied with respect to the appeal from the order dated July 29, 2009; and it is further,

ORDERED that the branch of the cross motion which is to dismiss the appeal from the order dated July 29, 2009, for failure to timely perfect is denied; and it is further,

ORDERED that the branch of the cross motion which is to dismiss the appeal from the order dated July 29, 2009, on the ground that the issues to be raised are precluded by dismissal of the appeal from the order dated February 9, 2009, is denied without prejudice to raising the argument in the respondent's brief.

SANTUCCI, J.P., LEVENTHAL, CHAMBERS and AUSTIN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court