Appellate Division: Second Judicial Department

M116215

J/sl

ANITA R. FLORIO, J.P.

THOMAS A. DICKERSON

JOHN M. LEVENTHAL

L. PRISCILLA HALL, JJ.

2009-11273 Louis A. Wenger, appellant, v DMR Realty Management, Inc., et al., respondents. (Index No. 44413-08)

DECISION & ORDER ON MOTION

Motion by the respondents to dismiss an appeal from an order of the Supreme Court, Suffolk County, dated October 23, 2009, on the ground that the record on appeal is inadequate or, in the alternative, to enlarge the time to serve and file a brief. Application by the respondents pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to serve and file a brief. By decision and order on motion of this Court dated November 4, 2010, the matter was remitted to the Supreme Court, Suffolk County, to hear and report on whether that court had considered certain documents in determining the motions that resulted in the order appealed from, and the motion and application were held in abeyance in the interim. The Supreme Court, Suffolk County, has filed its report dated November 19, 2010.

Upon the papers filed in support of the motion 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, and upon the report of the Supreme Court, Suffolk County, dated November 19, 2010, it is

ORDERED that the branch of the motion which is to dismiss the appeal is denied on condition that on or before March 30, 2011, the appellant shall (1) serve and file a supplemental record containing (A) the papers filed in support of the appellant's motion for leave to amend the complaint, including the notice of motion dated May 22, 2009, the affirmation of Robert J. LaReddola dated May 22, 2009, and annexed exhibits, (B) exhibits 5, 6, and 7 to the reply affirmation of Thomas E. Fogarty dated July 8, 2009, (C) the last page of the complaint in an action entitled Seaboard Surety Company v L.A. Wenger Contracting Co., Inc., filed May 21, 2001, under Supreme Court, Suffolk County, Index No. 13263-01, (D) the affirmation of Adam Friedman dated May 21, 2001, and (E) the letter of Robert J. LaReddola dated July 21, 2009, and (2) correct the copies of the record on appeal filed with the Clerk of the Court by changing the table of contents and the document header with respect to the deed that begins on page 74, and by changing the table of contents with respect to affirmation of Joseph I. Farca dated May 20, 2009, which is reproduced at pages 170- 183; and it is further,

ORDERED that the branch of the motion which is to enlarge the time to serve and file a brief and the application for the same relief are granted, the respondents' time to serve and file a brief is enlarged until April 29, 2011, and the respondents' brief must be served and filed on or before that date.

FLORIO, J.P., DICKERSON, LEVENTHAL and HALL, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court