Appellate Division: Second Judicial Department

M114796

E/ct

MARK C. DILLON, J.P.

JOSEPH COVELLO

ANITA R. FLORIO

L. PRISCILLA HALL, JJ.

2010-03839, 2010-03953, 2010-09921 Michael H. Spector, AIA, P.C., etc., respondent-appellant, v Billy Smith's Sport Center, Inc., respondent, Mark Zion, et al., appellants-respondents. (Index No. 8348/04)

DECISION & ORDER ON MOTION

Motion by Mark Zion and Abraham Zion on appeals and a cross appeal from an order of the Supreme Court, Nassau County, entered March 30, 2010, a purported appeal from an order of the same court dated July 2, 2010, and an appeal from a judgment of the same court dated May 14, 2010, to deem the notice of appeal by Abraham Zion from the order entered March 30, 2010, to be a premature notice of appeal from the judgment, to withdraw the purported appeal from the order dated July 2, 2010, and to consolidate the appeals. Cross motion by Michael H. Spector, AIA, P.C., to dismiss the appeal by Abraham Zion from the order entered March 30, 2010, for failure to timely perfect or, in the alternative, to deem its notice of cross appeal from the order entered March 30, 2010, to be a premature notice of cross appeal from the judgment, and to enlarge the time to serve and file its answering brief. Application by Mark Zion to enlarge the time to perfect his appeal from the order entered March 30, 2010, and his purported appeal from the order dated July 2, 2010. Separate application by Michael H. Spector, AIA, P.C., pursuant to 22 NYCRR 670.8(d)(2), to enlarge the time to serve and file its answering brief, including its points of argument on the cross appeal ( see 22 NYCRR 670.8[c][3]), with respect to the order entered March 30, 2010.

Upon the papers filed in support of the motion and the cross motion, and the papers filed in opposition thereto, and upon the papers filed in support of the applications, the papers filed in relation to Mark Zion's application, and no papers having been filed in opposition or in relation to the application by Michael H. Spector, AIA, P.C., it is

ORDERED that the branch of the motion which is to deem the notice of appeal by Abraham Zion from the order entered March 30, 2010, to be a premature notice of appeal from the judgment is granted (see CPLR 5520[c]), and Abraham Zion shall perfect his appeal from the judgment under Appellate Division Docket No. 2010-09921; and it is further,

ORDERED that the branch of the cross motion which is to deem the notice of cross appeal from the order entered March 30, 2010, to be a premature notice of cross appeal from the judgment is granted (see CPLR 5520[c]) and Michael H. Spector, AIA, P.C., shall serve and file its answering brief, including its points of argument on the cross appeal, with respect to the judgment under Appellate Division Docket No. 2010-09921; and it is further,

ORDERED that on the Court's own motion, the appeal by Mark Zion from the order entered March 30, 2010 (Appellate Division Docket No. 2010-03839), is dismissed, without costs or disbursements, on the ground that the right of direct appeal therefrom terminated upon entry of the judgment in the above-entitled action (see Matter of Aho, 39 NY2d 241); and it is further,

ORDERED that the branch of the motion which is to withdraw the purported appeal from the order dated July 2, 2010 (Appellate Division Docket No. 2010-03953), is granted; and it is further,

ORDERED that the branch of the motion which is to consolidate the appeals is denied as academic; and it is further,

ORDERED that the application by Mark Zion is denied as academic; and it is further,

ORDERED that on the Court's own motion, the time to perfect the appeal by Abraham Zion from the judgment is enlarged until March 16, 2011, and the joint record or appendix on the appeal and the appellants-respondents' respective briefs shall be served and filed on or before that date; and it is further,

ORDERED that the branch of the cross motion which is to enlarge the time to serve and file an answering brief and the application by Michael H. Spector, AIA, P.C., are granted to the extent that it shall serve and file its answering brief, including its points of argument on the cross appeal, with respect to the judgment, in accordance with the rules of the Court (see 22 NYCRR 670.8[c][3]), and that branch of the cross motion and the application are otherwise denied; and it is further,

ORDERED that the cross motion is otherwise denied.

DILLON, J.P., COVELLO, FLORIO and HALL, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court