Appellate Division: Second Judicial Department

M147855

E/sl

REINALDO E. RIVERA, J.P.

MARK C. DILLON

SHERI S. ROMAN

JEFFREY A. COHEN, JJ.

2011-02629 Bruce Marley, respondent-appellant, v Barbara Marley, appellant-respondent. (Index No. 4655/09)

DECISION & ORDER ON MOTION

Appeal by Barbara Marley and cross appeal by Bruce Marley from a judgment of the Supreme Court, Orange County, dated February 14, 2011. By order to show cause dated October 25, 2012, the parties or their attorneys were directed to show cause before this Court why an order should not be made and entered dismissing the appeal and cross appeal on the ground that the judgment had been superseded by an amended judgment of the same court dated February 24, 2012. Motion by Barbara Marley to deem her notice of appeal from the judgment to be a premature notice of appeal from the amended judgment, and to limit the issues raised on the appeal from the amended judgment to those raised in the briefs filed in connection with the appeal and cross appeal from the judgment. Application by Bruce Marley to withdraw the cross appeal. Separate application by Barbara Marley (1) to withdraw Point II of her brief insofar as it seeks reimbursement for out-of-pocket expenses and insurance premiums and (2) to withdraw Point IV of her brief.

Now, upon the order to show cause and the papers filed in response thereto, upon the papers filed in support of Barbara Marley's motion and the papers filed in opposition thereto, and upon the papers filed in support of the applications and no papers having been filed in opposition or in relation thereto, it is

ORDERED that Barbara Marley's motion is granted, the notice of appeal from the judgment is deemed to be a premature notice of appeal from the amended judgment (see CPLR 5512), the issues raised on the appeal from the amended judgment are limited to the issues raised in the briefs previously filed, and further limited as set forth above, and on or before December 26, 2013, Barbara Marley shall serve and file a supplemental record containing the amended judgment, and Barbara Marley's motion is otherwise denied as academic; and it is further,

ORDERED that the applications are granted, and the cross appeal and Point II of Barbara Marley's brief insofar as it seeks reimbursement for out-of-pocket expenses and insurance premiums and Point IV of Barbara Marley's brief are deemed withdrawn, without costs or disbursements; and it is further,

ORDERED that the motion to dismiss the appeal and the cross appeal is denied as academic.

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

ENTER:

Aprilanne Agostino

Clerk of the Court