Appellate Division: Second Judicial Department

M112157

E/sl

JOSEPH COVELLO, J.P.

DANIEL D. ANGIOLILLO

THOMAS A. DICKERSON

ARIEL E. BELEN, JJ.

2009-09430 Howard Johnson, appellant, v City of Peekskill, respondent. (Index No. 09-12595)

DECISION & ORDER ON MOTION

Motion by the respondent to strike stated portions of the appellant's appendix and the appellant's brief on an appeal from an order of the Supreme Court, Westchester County, entered September 2, 2009, on the ground that they contain or refer to matter dehors the record and to impose a sanction upon the appellant and for an award of costs.

Upon the papers filed in support of the motion and no papers having been filed in opposition or in relation thereto, it is

ORDERED that the branch of the motion which is to strike stated portions of the appellant's appendix and the appellant's brief is granted, and pages 15 through 17 of the appellant's appendix are stricken and the following material from the appellant's brief is stricken:

(1) on page 2, in the table of contents, the entry "Additional Medical ..... Exhibit 4";

(2) on page 6, the last complete sentence, beginning with the words "I am providing" and ending with the word "etc."; and

(3) on page 7, the third and fourth sentences beginning with the word "Furthermore" and ending with the words "taken into considerations [sic]."; and it is further,

ORDERED that on or before January 3, 2011, the appellant shall remove the stricken material from the copies of the appellant's appendix and brief filed with the Clerk of the Court or serve and file replacements that do not contain or refer to the stricken material; and it is further,

ORDERED that the branches of the motion which are to impose a sanction upon the appellant and for an award of costs are denied.

COVELLO, J.P., ANGIOLILLO, DICKERSON and BELEN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court