Appellate Division: Second Judicial Department

M145413

S/sl

RANDALL T. ENG, P.J.

REINALDO E. RIVERA

PETER B. SKELOS

MARK C. DILLON, JJ.

2012-03180 NYCTL 1999-1 Trust, etc., plaintiff, v Rita Stark, etc., defendant third-party plaintiff- respondent; Herman Facilla, third-party defendant- appellant, et al., third-party defendant. (Index No. 6874/03)

DECISION & ORDER ON MOTION

Appeal by third-party defendant Herman Facilla from a judgment of the Supreme Court, Queens County, entered December 13, 2011. By decision and order on motion of this Court dated July 20, 2012, the respondent's motion to dismiss the appeal as untimely taken was remitted to the Supreme Court, Queens County, to hear and report on the issue of whether the judgment entered December 13, 2011, was served upon the appellant's counsel with notice of entry, and, if so, when service was effected, and the motion was held in abeyance in the interim. By order on application of this Court dated October 5, 2012, the appeal was marked withdrawn.

Now, on the Court's own motion, it is

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

Motion by the respondent to dismiss an appeal from a judgment of the Supreme Court, Queens County, entered December 13, 2011, as untimely taken.

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

ORDERED that the motion is denied as academic in light of the withdrawal of the appeal.

ENG, P.J., RIVERA, SKELOS and DILLON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court