| Yellow Book of New York v Cataldo |
| Motion No: 2011-10387 |
| Slip Opinion No: 2012 NY Slip Op 75164(U) |
| Decided on June 4, 2012 |
| Appellate Division, Second Department, Motion Decision |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This motion is uncorrected and is not subject to publication in the Official Reports. |
Appellate Division: Second Judicial Department
M138529
E/sl
MARK C. DILLON, J.P.
THOMAS A. DICKERSON
LEONARD B. AUSTIN
ROBERT J. MILLER, JJ.
|
2011-10387, 2011-10394 Yellow Book of New York, LP, etc., respondent, v James Cataldo, etc., appellant, et al., defendants. (Index No. 7848/01)
| DECISION & ORDER ON MOTION |
Motion by the respondent to dismiss an appeal from an order of the Supreme Court, Nassau County, dated August 31, 2011, on the ground that the order, in effect, denies reargument, and to dismiss an appeal from an amended judgment of the same court entered September 8, 2011, on the ground that no appeal lies from an amended judgment entered subsequent to an order of the appellate division which disposes of all the issues in the action. Application by the appellant pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to perfect an appeals.
Upon the papers filed in support of the motion 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 motion which is to dismiss the appeal from the order dated August 31, 2011, is denied; and it is further,
ORDERED that on the Court's own motion, the appeal from the order dated August 31, 2011 (Appellate Division Docket No. 2011-10394), is dismissed, without costs or disbursements, on the ground that the right of direct appeal therefrom terminated upon entry of the amended judgment (see Matter of Aho, 39 NY2d 241), without prejudice to raising issues related to the order on the appeal from the amended judgment; and it is further,
ORDERED that the branch of the motion which is to dismiss the appeal from the amended judgment entered September 8, 2011 (Appellate Division Docket No. 2011-10387), is granted to the extent that the appeal from the amended judgment is dismissed to the extent that it is barred by CPLR 5701(a)(1), and that branch of the motion is otherwise denied; and it is further,
ORDERED that the application is granted to the extent that the appellant's time to perfect the appeal from the amended judgment is enlarged until July 30, 2012, and the record or appendix on the appeal and the appellant's brief must be served and filed on or before that date, and the application is otherwise denied as academic.
DILLON, J.P., DICKERSON, AUSTIN and MILLER, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court