Appellate Division: Second Judicial Department

M147705

E/sl

REINALDO E. RIVERA, J.P.

MARK C. DILLON

SHERI S. ROMAN

JEFFREY A. COHEN, JJ.

2012-00826 Douglas Wenzel, respondent-appellant, v 16302 Jamaica Avenue, LLC, respondent, Margherita Pizza Corp., appellant-respondent. (Index No. 941/09)

DECISION & ORDER ON MOTION

Motion by the respondent-appellant to strike Point II of the appellant-respondent's brief on an appeal and cross appeal from an order of the Supreme Court, Queens County, dated December 9, 2011, on the ground that the issue raised therein is not properly before the Court, and to enlarge the time to serve and file a brief.

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

ORDERED that the branch of the motion which is to strike Point II of the appellant-respondent's brief is held in abeyance and referred to the panel of Justices hearing the appeal and cross appeal for determination upon the argument or submission thereof; 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-appellant's time to serve and file his answering brief, including his points of argument on the cross appeal (see 22 NYCRR 670.8[c][3]) is enlarged until January 7, 2013, and the answering brief must be served and filed on or that date.

RIVERA, J.P., DILLON, ROMAN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court