Appellate Division: Second Judicial Department

M125830

E/sl

MARK C. DILLON, J.P.

RANDALL T. ENG

SANDRA L. SGROI

ROBERT J. MILLER, JJ.

2010-10610 Ethel M. Burwell, et al., plaintiffs-respondents, v City of New York, respondent-appellant, Robin Gilgeors Auto Service, etc., defendant-respondent, Shmuel Zeevi, et al., appellants-respondents. (Index No. 36834/04)

DECISION & ORDER ON MOTION

Motion by the plaintiff-respondent Ethel M. Burwell on an appeal and a cross appeal from an order of the Supreme Court, Kings County, dated October 7, 2010, to vacate the stay of all proceedings on the appeal and cross appeal pursuant to CPLR 1015 as a consequence of the death of the plaintiff-respondent Frank Burwell, and to dismiss the cross appeal as untimely taken.

Upon the papers filed in support of the motion and the papers filed in opposition and in relation thereto, it is

ORDERED that on the Court's own motion, the appeal and cross appeal are dismissed as academic insofar as asserted against the plaintiff-respondent Frank Burwell in light of the order of the Supreme Court, Kings County, dated July 26, 2011, pursuant to CPLR 1021 dismissing the complaint insofar as asserted by him; and it is further,

ORDERED that the branch of the motion which is to vacate the stay of all proceedings on the appeal and cross appeal pursuant to CPLR 1015 as a consequence of the death of the plaintiff-respondent Frank Burwell is denied as unnecessary in light of the dismissal of the appeal and cross appeal insofar as asserted against him; and it is further,

ORDERED that the branch of the motion which is to dismiss the cross appeal insofar as asserted against the plaintiff Frank Burwell is denied as academic in light of our determination, and the branch of the motion which is to dismiss the cross appeal insofar as asserted against the plaintiff Ethel M. Burwell is denied; and it is further,

ORDERED that on the Court's own motion, on or before October 17, 2011, the plaintiff-respondent may serve and file a supplemental brief, if she be so advised, responding to the brief filed by the City of New York; and it is further,

ORDERED that time of the City of New York to serve and file a reply brief is enlarged until October 27, 2011, and the reply brief, if any, may be served and filed on or before that date.

DILLON, J.P., ENG, SGROI and MILLER, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court