Appellate Division: Second Judicial Department

M109112

E/sl

STEVEN W. FISHER, J.P.

MARK C. DILLON

ANITA R. FLORIO

PLUMMER E. LOTT, JJ.

2010-02439, 2010-02440 In the Matter of Alfred Engelhardt, deceased. Ellen Engelhardt, appellant; Alyssa Hellman, et al., respondents. (File No. 4050/07)

DECISION & ORDER ON MOTION

Motion by the appellant for leave to prosecute appeals from a decision of the Surrogate's Court, Queens County, dated January 29, 2010 (Appellate Division Docket No. 2010-02439), and a decree of the same court dated February 17, 2010 (Appellate Division Docket No. 2010-02440), as a poor person, and to enlarge the time to perfect the appeals.

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

ORDERED that on the court's own motion, the appeal from the decision dated January 29, 2010 (Appellate Division Docket No. 2010-02439), is dismissed, without costs or disbursements, on the ground that no appeal lies from a decision (see Schicchi v J.A. Green Constr. Co.,100 AD2d 509); and it is further,

ORDERED that the branches of the motion which are for leave to prosecute the appeal from the decision and to enlarge the time to perfect the appeal from the decision are denied as academic; and it is further,

ORDERED that the branch of the motion which is for leave to prosecute the appeal from the decree dated February 17, 2010 (Appellate Division Docket No. 2010-02440), on the original papers is granted, and that appeal will be heard on the original papers (including the transcript of the proceedings, if any) and on the briefs of the parties, who are directed to file nine copies of their respective briefs and to serve one copy on each other; and it is further,

ORDERED that the branch of the motion which is to enlarge the time to perfect the appeal from the decree dated February 17, 2010 (Appellate Division Docket No. 2010-02440), is granted, and the appellant's time to perfect the appeal by causing the original papers constituting the record on the appeal to be filed in the office of the Clerk of this court (see 22 NYCRR 670.9[d][2]) and by serving and filing her brief on the appeal is enlarged until December 3, 2010; and it is further,

ORDERED that the branches of the motion which are to waive payment of the filing fee and for free transcripts with respect to the appeal from the decree are denied.

FISHER, J.P., DILLON, FLORIO and LOTT, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court