Appellate Division: Second Judicial Department

M122381

E/sl

A. GAIL PRUDENTI, P.J.

DANIEL D. ANGIOLILLO

ARIEL E. BELEN

SANDRA L. SGROI, JJ.

2010-06748, 2010-06749 In the Matter of Ira Schwarzenberger, deceased. Helene Schwarzenberger, appellant; Marsha Matthews, etc., et al., respondents. (File No. 6027/91)

DECISION & ORDER ON MOTION

Motion by the appellant pro se on appeals from two orders of the Surrogate's Court, Kings County, dated November 28, 2007, and March 30, 2010, respectively, to waive the requirements of 22 NYCRR 670.10.2(f) regarding certification of the record on appeal. Separate motion by the appellant pro se, in effect, for leave to file a replacement brief. Cross motion by the respondent Estate of Taube Schwarzenberger, inter alia, to dismiss the appeal for failure to properly serve the appellant's brief and appellant's appendix, for failure to certify the appellant's appendix, for failure to serve the RADI on all respondents, and on the grounds that the brief refers to matter dehors the record and the appellant's appendix is inadequate. Separate cross motion by the respondent Merrill Lynch, Pierce, Fenner & Smith, Inc., to dismiss the appeal for failure to properly serve the appellant's brief and appellant's appendix and for failure to certify the appellant's appendix. Separate cross motion by the respondent Graubard Miller to dismiss the appeal for failure to properly serve the appellant 's brief and appellant's appendix and for failure to certify the appellant's appendix. Application pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to serve and file the respondents' briefs. Application by the respondents to strike the appellant's appendix on the ground that it contains matter delors the record.

Upon the papers filed in support of the motions and the cross motions, and the papers filed in opposition thereto, and upon the papers filed in support of the applications and no papers having been filed in opposition or in relation thereto, it is

ORDERED that the appellant's motions are granted, and on or before July 20, 2011, the appellant shall serve and file a replacement brief in the form annexed to the motion papers; and it is further,

ORDERED that the cross motions are denied; and it is further,

ORDERED that the application to enlarge the time to serve and file respondents' briefs is granted, the respondents' time to serve and file their briefs is enlarged until August 19, 2011, and the respondents' briefs, if any, must be served and filed on or before that date; and it is further,

ORDERED that the application to strike the appellant's appendix is denied without prejudice to making a motion for that relief.

PRUDENTI, P.J., ANGIOLILLO, BELEN and SGROI, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court