Appellate Division: Second Judicial Department

M122935

E/ct

PETER B. SKELOS, J.P.

RANDALL T. ENG

JOHN M. LEVENTHAL

SANDRA L. SGROI, JJ.

2010-10798 Erik Baker, appellant, v Subhash Inamdar, etc., respondent. (Index No. 09-4749)

DECISION & ORDER ON MOTION

Motion by the respondent to dismiss an appeal from an order of the Supreme Court, Westchester County, entered September 7, 2010, for failure to timely perfect, and for an award of costs and disbursements. Application by the appellant pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to perfect the appeal. Separate motion by the appellant pro se to waive the requirements of 22 NYCRR 670.10.2(f) regarding certification of the record on appeal. Separate motion by the respondent to strike the record as inadequate or to enlarge the time to serve and file a brief.

Upon the papers filed in support of the motions and the application and the papers filed in opposition thereto, it is

ORDERED that on the Court's own motion, the notice of appeal from the order of the Supreme Court, Westchester County, entered September 7, 2010, is deemed to be a premature notice of appeal from a judgment of the same court entered October 28, 2010 (see CPLR 5520[c]); and it is further,

ORDERED that the application is granted and the appellant's time to perfect the appeal is enlarged, and the record and the appellant's brief submitted to the Clerk of the Court is accepted for filing; and it is further,

ORDERED that the motion to waive the requirements of 22 NYCRR 670.10.2(f) regarding certification of the record on appeal is granted; and it is further,

ORDERED that on or before August 2, 2011, the appellant shall serve and file a supplemental record containing the following: (1) judgment entered October 28, 2010, (2)answer dated April 23, 2009, (3) decision of the Supreme Court, Westchester County, dated January 22, 2009, (4) respondent's posttrial letter to the trial court, which was annexed to the affirmation of Eldar Mayouhas dated June 17, 2010, as Exhibit D, (5) trial court's response to the respondent's letter, which was annexed to the affirmation of Eldar Mayouhas dated June 17, 2010, as Exhibit E, (6) stipulation dated December 2, 2008, and (7) reply affirmation filed in connection with the motion dated June 17, 2010; and it is further,

ORDERED that the motion to dismiss the appeal for failure to timely perfect is denied; and it is further,

ORDERED that the branch of the motion which is to strike the record is denied on condition that the appellant serve and file the supplemental record as set forth above; and it is further,

ORDERED that the branch of the motion which is to enlarge the respondent's time to serve and file a brief is granted, the respondent's time to serve and file a brief is enlarged until September 1, 2011, and the respondent's brief must be served and filed on or before that date.

SKELOS, J.P., ENG, LEVENTHAL and SGROI, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court