Appellate Division: Second Judicial Department

M148836

E/sl

PETER B. SKELOS, J.P.

RUTH C. BALKIN

CHERYL E. CHAMBERS

ROBERT J. MILLER, JJ.

2011-11145 Gary Friedman, P.C., appellant, v John Jay O'Neill, respondent. (Index No. 09-16001)

DECISION & ORDER ON MOTION

Motion by the appellant to recall and vacate so much of a decision and order on motion of this court, entitled "In the Matter of the Dismissal of Causes for Failure to Perfect - August 2012 Calendar," dated September 6, 2012, as dismissed an appeal from an order of the Supreme Court, Westchester County, entered October 26, 2011, pursuant to 22 NYCRR 670.8(e) for failure to timely perfect, to reinstate the appeal, in effect, to deem the notice of appeal from the order to be a premature notice of appeal from a judgment of the same court dated February 1, 2012, and to enlarge the time to perfect the appeal.

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 motion is granted, so much of the decision and order on motion of this Court dated September 6, 2012, as dismissed the appeal is recalled and vacated, the notice of appeal from the order is deemed to be a premature notice of appeal from the judgment (see CPLR 5520[c]), the appellant's time to perfect the appeal is enlarged until January 22, 2013, and the record or appendix on the appeal and the appellant's brief must be served and filed on or before that date.

SKELOS, J.P., BALKIN, CHAMBERS and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court