Appellate Division: Second Judicial Department

M134292

E/nl

RUTH C. BALKIN, J.P.

CHERYL E. CHAMBERS

L. PRISCILLA HALL

LEONARD B. AUSTIN, JJ.

2011-04605, 2011-04607 Lawrence G. Biggio, respondent, v Jacqueline Biggio, appellant. (Index No. 203547/03)

DECISION & ORDER ON MOTION

Motion by the appellant pro se on appeals from an order and a judgment of the Supreme Court, Nassau County, both dated April 13, 2011, to waive the requirements of 22 NYCRR 670.10.2(f) regarding certification of the appellant's appendix. Cross motion by the respondent, inter alia, to dismiss the appeals on the ground that the appellant's appendix is inadequate and contains matter dehors the record, and the brief is defective, or, in the alternative, to dismiss the appeal from the order on the ground that the right of direct appeal terminated upon entry of the judgment or, in the alternative, to enlarge the time to serve and file a brief.

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

ORDERED that the branch of the cross motion which is to dismiss the appeals on the ground that the appellant's appendix is inadequate and contains matter dehors the record, and the brief is defective, is denied on condition that on or before May 7, 2012, the appellant (1) settles and files the trial transcript in accordance with CPLR 5525 and serves and files a supplemental appendix containing relevant portions of the trial transcript, (2) files all trial exhibits or obtains a stipulation limiting the exhibits to be filed on the appeals, (3) removes pages 44, 45, and 49 from the appellant's appendix, and (4) serves and files a replacement brief that includes references to the appendix and a concise statement of the questions involved; and it is further,

ORDERED that the branch of the cross motion which is to dismiss the appeal from the order on the ground that the right of direct appeal terminated upon entry of the judgment is held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof; and it is further,

ORDERED that the branch of the cross 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 June 6, 2012, and the respondent's brief must be served and filed on or before that date; and it is further,

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

ORDERED that the motion is denied with leave to renew after the appellant has properly perfected the appeal in accordance with this decision and order on motion.

BALKIN, J.P., CHAMBERS, HALL and AUSTIN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court