Appellate Division: Second Judicial Department

M142635

E/sl

MARK C. DILLON, J.P.

ARIEL E. BELEN

PLUMMER E. LOTT

ROBERT J. MILLER, JJ.

2012-03016 Thomas Velucci, appellant, v Home Depot U.S.A, Inc., respondent. (Index No. 3248/11)

DECISION & ORDER ON MOTION

Motion by the respondent to dismiss an appeal from a decision of the Supreme Court, Queens County, dated February 22, 2012, on the ground that the record on appeal is inadequate or for failure to comply with CPLR 5513(a), or, in the alternative, to direct the appellant to serve and file a supplemental record containing certain material, and to enlarge the time to serve and file a brief.

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

ORDERED that on the Court's own motion, the notice of appeal from the decision is deemed to be a premature notice of appeal from an order of the Supreme Court, Queens County, dated May 25, 2012 (see CPLR 5520[c]); and it is further,

ORDERED that the branch of the motion which is to direct the appellant to serve and file a supplemental record, is granted and on or before September 14, 2012, the appellant shall serve and file a supplemental record containing the reply affirmation of Anthony Terranova dated February 17, 2012, and a signed copy of the affirmation of Linda T. Ziatz dated February 9, 2012 filed in opposition to the cross motion; and it is further,

ORDERED that the branch of the motion which is to enlarge the time to serve and file a brief is granted, the respondent's time to serve and file a brief is enlarged until October 15, 2012, and the respondent's brief must be served and filed on or before that date; and it is further,

ORDERED that the motion is otherwise denied.

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

ENTER:

Aprilanne Agostino

Clerk of the Court