Appellate Division: Second Judicial Department

M110762

E/sl

MARK C. DILLON, J.P.

FRED T. SANTUCCI

THOMAS A. DICKERSON

CHERYL E. CHAMBERS, JJ.

2010-03749, 2010-06195 Lucille Turuseta, respondent, v Wyassup- Laurel Glen Corp., et al., appellants. (Appeal No. 1) Lucille Turuseta, appellant, v Wyassup- Laurel Glen Corp., et al., respondents. (Appeal No. 2) (Index No. 03-10529)

DECISION & ORDER ON MOTION

Motion by Lucille Turuseta to dismiss an appeal from an amended judgment of the Supreme Court, Westchester County, dated March 16, 2010 (Appellate Division Docket No. 2010-03749), on the ground that "no appeal lies from an amended judgment where the changes were not substantial and did not adversely affect the appellant," to stay all proceedings in the above-entitled action pending hearing and determination of an appeal from an order of the same court entered May 10, 2010 (Appellate Division Docket No. 2010-06195), and to enlarge the record with respect to the order entered May 10, 2010, to include certain pages of the trial transcript. Cross motion by Wyassup-Laurel Glen Corp. and Edward M. Verdes and Son, Inc., to dismiss the appeal from the order entered May 10, 2010, as no appeal lies from an order which directs a hearing to aid in the disposition of a motion and to enlarge the time to serve and file a respondents' brief with respect to the order entered May 10, 2010. Application by Wyassup-Laurel Glen Corp. and Edward M. Verdes and Son, Inc., pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to perfect the appeal from the amended judgment dated March 16, 2010.

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

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

ORDERED that on the Court's own motion, the following material in the brief of Lucille Turuseta filed in connection with the appeal from the order entered May 10, 2010 (Appellate Division Docket No. 2010-06195) is stricken: (1) the second full paragraph on page 7, and (2) the material beginning with the words "Even worse," in the last paragraph on page 14 and ending with the words "considered by this Court on this appeal," in the first sentence of the first full paragraph on page 15; and it is further,

ORDERED that on or before November 23, 2010, Lucille Turuseta shall remove or delete the stricken material from all copies of her brief on file with this Court; and it is further;

ORDERED that the branch of the cross motion which is to dismiss the appeal from the order entered May 10, 2010 (Appellate Division Docket No. 2010-06195), is denied without prejudice to raising the issue in the respondents' brief with respect to that appeal; and it is further,

ORDERED that the branch of the cross motion which is to enlarge the time to serve and file a respondents' brief with respect the appeal from to the order entered May 10, 2010 (Appellate Division Docket No. 2010-06195), is granted, the time to serve and file a respondent's brief with respect to that appeal is enlarged until December 9, 2010, and the brief must be served and filed on or before that date; and it is further,

ORDERED that the application is granted, the time to perfect the appeal from the amended judgment dated March 16, 2010 (Appellate Division Docket No. 2010-03749), is enlarged until January 10, 2010, and the record or appendix on the appeal and the appellants' brief with respect to that appeal must be served and filed on or before that date.

DILLON, J.P., SANTUCCI, DICKERSON and CHAMBERS, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court