Appellate Division: Second Judicial Department

M135888

E/ct

WILLIAM F. MASTRO, A.P.J.

L. PRISCILLA HALL

SANDRA L. SGROI

JEFFREY A. COHEN, JJ.

2011-00786 Frederick Waite, appellant, v William King, et al., respondents. (Index No. 785/08)

DECISION & ORDER ON MOTION

Motion by the respondent William King on an appeal from an order of the Supreme Court, Kings County, dated November 10, 2010, to strike pages 135 through 138 from the record on appeal, to dismiss the appeal on the ground that no appeal lies from an order entered upon the default of the appealing party or on the ground that the record on appeal is inadequate, or to direct the appellant to file a replacement record and to enlarge the time to serve and file a brief. By decision and order on motion of this Court dated November 30, 2011, the matter was remitted to the Supreme Court, Kings County, to report on whether the court considered the affirmation of Andrew Hirschhorn, dated June 14, 2010, in determining the motion that resulted in the order dated November 10, 2010, and the motion was held in abeyance in the interim. The Supreme Court, Kings County, has filed its report dated March 14, 2012.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the report of the Supreme Court, Kings County, dated March 14, 2012, it is

ORDERED that the branch of the motion which is to dismiss the appeal on the ground that the appellant is not aggrieved by an order entered upon his default is granted and the appeal is dismissed, without costs or disbursements (see CPLR 5511); and it is further,

ORDERED that the motion is otherwise denied as academic.

MASTRO, A.P.J., HALL, SGROI and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court