Appellate Division: Second Judicial Department

M129399

E/sl

DANIEL D. ANGIOLILLO, J.P.

THOMAS A. DICKERSON

PLUMMER E. LOTT

ROBERT J. MILLER, JJ.

2010-04263 West Vernon Petroleum Corp., appellant- respondent, v Singer Holding Corp., defendant, Almeida Oil Co., Inc., et al., respondents-appellants. (Index No. 04-12514)

DECISION & ORDER ON MOTION

Motion by the appellant-respondent to strike stated portions of the respondents-appellants' brief on an appeal and cross appeal from an order of the Supreme Court, Westchester County, entered April 5, 2010, and for an award of costs and an attorney's fee. Separate motion by the appellant-respondent to replace certain pages of the joint record on appeal, and for an award of costs and an attorney's fee. Cross motion by the respondents-appellants for leave to serve and file a supplemental brief raising the issue that the appellant-respondent's claim for legal fees should be denied because the claim was never pled. Separate cross motion by the respondents-appellants, inter alia, for leave to serve and file a replacement brief. Application by the appellant-respondent pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to serve and file a reply brief.

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 application and no papers having been filed in opposition or in relation thereto, it is

ORDERED that the branch of the second motion which is to replace certain pages of the joint record on appeal is granted to the extent that pages 3065 through 3141 of the record are stricken and on or before December 13, 2011, the appellant-respondent shall remove those pages from the copies of the joint record on appeal filed with the Clerk of the Court and serve and file a supplemental joint record containing the affirmation of Jeffrey S. Greene dated September 24, 2009, with attached exhibits; and it is further,

ORDERED that the branch of the second cross motion which is for leave to serve and file a replacement brief is granted, the brief filed by the respondents-appellants with the Clerk of this Court on June 20, 2011, is deemed withdrawn, and on or before January 12, 2012, the respondents-appellants shall serve and file their replacement brief; and it is further,

ORDERED that the branch of the first motion which is to strike stated portions of the respondents-appellants' brief is denied as academic; and it is further,

ORDERED that the first cross motion for leave to serve and file a supplemental brief is denied as academic; and it is further,

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

ORDERED that the application is denied as premature.

ANGIOLILLO, J.P., DICKERSON, LOTT and MILLER, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court