Appellate Division: Second Judicial Department

M106902

E/sl

JOSEPH COVELLO, J.P.

DANIEL D. ANGIOLILLO

PLUMMER E. LOTT

SANDRA L. SGROI, JJ.

2009-11149 David Cohen, etc., appellant, v Elihu Romanoff, respondent. (Index No. 626/97)

DECISION & ORDER ON MOTION

Motion by the respondent, in effect, to dismiss an appeal from an order of the Supreme Court, Kings County, dated September 25, 2009, to strike stated portions of the record and the appellant's brief on the ground that they contain or refer to matter dehors the record, and to strike stated portions of the appellant's brief on the ground, in effect, that they improperly raise issues for the first time on appeal.

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

ORDERED that the branch of the motion which is, in effect, to dismiss the appeal is denied; and it is further,

ORDERED that the branches of the motion which are to strike stated portions of the record and the appellant's brief on the ground that they contain or refer to matter dehors the record and to strike stated portions of the appellant's brief on the ground, in effect, that they improperly raise issues for the first time on appeal are 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 on the court's own motion, the respondent's time to serve and file a brief is enlarged until September 10, 2010, and the respondent's brief must be served and filed on or before that date.

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

ENTER:

James Edward Pelzer

Clerk of the Court