Appellate Division: Second Judicial Department

M107017

E/sl

PETER B. SKELOS, J.P.

RANDALL T. ENG

L. PRISCILLA HALL

PLUMMER E. LOTT, JJ.

2007-05668 Charleen Anne Palumbo, respondent, v Robert Palumbo, appellant. (Index No. 24096/97)

DECISION & ORDER ON MOTION

On the court's own motion, it is

ORDERED that its decision and order on motion dated June 18, 2010, in the above-entitled case is recalled and vacated, and the following decision and order on motion is substituted therefor:

Motion by the appellant pro se on an appeal from an amended order of the Supreme Court, Nassau County, entered May 23, 2007, to waive the requirements of 22 NYCRR 670.10.2(f) regarding certification of the record on appeal. Cross motion by the respondent to dismiss the appeal on the ground that the appellant's appendix is inadequate and contains matter dehors the record, and for an award of an attorney's fee. Application by the respondent pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to serve and file a brief.

Upon the papers filed in support of the motion and the cross motion, the papers filed in opposition to the motion, and no papers having been filed in opposition or in relation to the cross motion, and upon the application, it is

ORDERED that the branch of the cross motion which is to dismiss the appeal is granted to the extent that the appellant's appendix and the appellant's brief are stricken, and on or before July 19, 2010, the appellant shall serve and file a replacement appendix and a replacement brief that comply with CPLR 5528 and the rules of this court (see 22 NYCRR 670.10.2[c]), and do not contain or refer to matter dehors the record; and it is further,

ORDERED that the cross motion is otherwise denied; and it is further,

ORDERED that the motion is denied with leave to renew upon submission of a proper appendix; and it is further,

ORDERED that the application is denied as premature.

SKELOS, J.P., ENG, HALL and LOTT, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court