Appellate Division: Second Judicial Department

M120368

E/sl

WILLIAM F. MASTRO, J.P.

THOMAS A. DICKERSON

SHERI S. ROMAN

SANDRA L. SGROI, JJ.

2010-06874 Law Office of Clifford G. Kleinbaum, respondent, v Arnold G. Shurkin, etc., appellant. (Index No. 28295/09)

DECISION & ORDER ON MOTION

Motion by the appellant for leave to withdraw Point 2 of his brief on an appeal from an order of the Supreme Court, Westchester County, entered June 18, 2010. Cross motion by the respondent pursuant to 22 NYCRR 130-1.1(c) to impose a sanction upon the appellant and for an award of an attorney's fee in the sum of $2,500 on the ground that Point 2 is frivolous and the respondent was forced to address it in the respondent's brief.

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

ORDERED that the motion is granted, and on or before June 10, 2011, the appellant shall remove Point 2 from the copies of his brief filed with the Clerk of the Court or serve and file a replacement brief which does not contain the argument presented in Point 2; and it is further,

ORDERED that the cross motion is held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

MASTRO, J.P., DICKERSON, ROMAN and SGROI, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court