Appellate Division: Second Judicial Department

M131873

E/sl

MARK C. DILLON, J.P.

JOHN M. LEVENTHAL

ARIEL E. BELEN

PLUMMER E. LOTT, JJ.

2011-10563, 2011-10565 Excelsior Capital, LLC, etc., respondent, et al., plaintiff, v Superior Broadcasting Company, Inc., defendant, Estate of C. Robert Allen III, appellant. (Index No. 8289/07)

DECISION & ORDER ON MOTION

Joint motion by the appellant and the respondent for a preference in the calendaring of appeals from a judgment of the Supreme Court, Nassau County, dated September 21, 2011, and an order of the same court entered September 21, 2011.

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

ORDERED that on the Court's own motion, the appeal from the order entered September 21, 2011 (Appellate Division Docket No. 2011-10565), is dismissed, without costs or disbursements, on the ground that no appeal lies as of right from an order that is not the result of a motion made on notice (see CPLR 5701), and leave to appeal has not been granted; and it is further,

ORDERED that the motion is granted to the extent that a preference is granted with respect to that the appeal from the judgment dated September 21, 2011 (Appellate Division Docket No. 2011-10565), and that appeal will be calendared after all of the briefs have been filed, and the motion is otherwise denied as academic; and it is further,

ORDERED that on the Court's own motion, the appellant shall perfect the appeal from the judgment on or before February 29, 2012; and it is further,

ORDERED that the respondent shall serve and file its brief, if any, on or before March 30, 2012; and it is further,

ORDERED that the appellant shall serve and file a reply brief, if any, on or before April 15, 2012.

DILLON, J.P., LEVENTHAL, BELEN and LOTT, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court