Appellate Division: Second Judicial Department

M114244

E/sl

ANITA R. FLORIO, J.P.

THOMAS A. DICKERSON

CHERYL E. CHAMBERS

PLUMMER E. LOTT, JJ.

2010-04400 In the Matter of Riven Flamenbaum, deceased. Hannah K. Flamenbaum, respondent-appellant; Vorderasiatisches Museum, appellant-respondent; Israel Flamenbaum, respondent. (File No. 328146)

DECISION & ORDER ON MOTION Motion to Dismiss Appeal

Motion by the respondent-appellant on an appeal and cross appeal from an order of the Surrogate's Court, Nassau County, dated March 30, 2010, to dismiss the appeal or strike stated portions of the appellant-respondent's brief on the ground that the appellant-respondent's brief contains or refers to matter dehors the record and improperly raises arguments for the first time on appeal, and to enlarge the time to serve and file an answering brief, including points of argument on the cross appeal (see 22 NYCRR 670.8[c][3]). Separate motion by the respondent to dismiss the appeal or strike stated portions of the appellant-respondent's brief on the ground that the appellant-respondent's brief contains or refers to matter dehors the record and improperly raises arguments for the first time on appeal, and to enlarge the time to serve and file a brief. 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 motions and the papers filed in opposition thereto, and upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it is

ORDERED that the branches of the motions which are to dismiss the appeal or strike stated portions of the appellant-respondent's brief on the ground that it contains or refers to matter dehors the record are denied; and it is further,

ORDERED that the branches of the motions which are to dismiss the appeal or strike stated portions of the appellant-respondent's brief on the ground that it improperly raises arguments for the first time on appeal are denied without prejudice to raising the issue in the respective briefs of the respondent-appellant and the respondent; and it is further,

ORDERED that the branch of the respondent-appellant's motion which is to enlarge the time to serve and file an answering brief is granted, the respondent-appellant's time to serve and file the answering brief, including its points of argument on the cross appeal, is enlarged until February 28, 2011, and the respondent-appellant's answering brief shall be served and filed on or before that date; and it is further,

ORDERED that the application to enlarge the time to serve and file the respondent's brief and the branch of the motion for the same relief are denied as premature.

FLORIO, J.P., DICKERSON, CHAMBERS and LOTT, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court