Appellate Division: Second Judicial Department

M139790

S/sl

DANIEL D. ANGIOLILLO, J.P.

RANDALL T. ENG

PLUMMER E. LOTT

JEFFREY A. COHEN, JJ.

2011-03946 House of Spices (India), Inc., respondent, v SMJ Services, Inc., appellant, et al., defendants (and a third-party action). (Index No. 700178/10)

DECISION & ORDER ON MOTION

Motion by the appellant to recall and vacate a decision and order of this Court dated May 23, 2012, which dismissed an appeal from an order of the Supreme Court, Queens County, entered March 9, 2011, to reinstate the appeal, for leave to file a supplemental record, and for a de novo determination of the appeal.

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

ORDERED that the motion is granted; and it is further,

ORDERED that the decision and order of this Court dated May 23, 2012, is recalled and vacated, and the appeal is reinstated; and it is further,

ORDERED that on or before July 27, 2012, the appellant shall serve and file a replacement record which includes the material contained in the original record as well as (1) the memorandum of law filed by the defendants Varghese Varghese and Shafquat Chaudary in connection with their motion to dismiss the complaint, (2) the appellant's letter memorandum filed in connection with its motion to dismiss the complaint, and (3) the affirmation of Michael Katz dated October 13, 2010, and a replacement brief; and it is further,

ORDERED that on the Court's own motion the decision and order on motion of this Court dated April 20, 2012, is recalled and vacated and the following decision and order on motion is substituted therefor:

Motion by the respondent to enlarge the time to serve and file a brief on an appeal from an order of the Supreme Court, Queens County, entered March 9, 2011, and to reschedule the date for argument or submission of the appeal.

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

ORDERED that the motion granted; and it is further,

ORDERED that the respondent's time to serve and file a brief is enlarged until August 27, 2012, and the respondent's brief shall be served and filed on or before that date; and it is further,

ORDERED that the appeal shall be recalendared after the replacement record and brief, the respondent's brief, and a reply brief, if any, are served and filed.

ANGIOLILLO, J.P., ENG, LOTT and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court