Appellate Division: Second Judicial Department

M159407

S/sl

RANDALL T. ENG, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

PETER B. SKELOS

MARK C. DILLON, JJ.

2013-02150 Man Choi Chiu, et al., plaintiffs-appellants- respondents, v Winston Chiu, respondent- appellant, Helen Chiu, et al., defendants- appellants-respondents. (Appeal No. 1) 2013-02792 Man Choi Chiu, et al., plaintiffs-respondents- appellants, v Winston Chiu, appellant-respondent, Helen Chiu, et al., defendants-respondents-appellants (Appeal No. 2) (Index No. 21905/07)

DECISION & ORDER ON MOTION

Application by Winston Chiu pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to perfect appeals and cross appeals from an order of the Supreme Court, Queens County, dated January 9, 2013, and a judgment of the same court dated January 24, 2013.

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

ORDERED that on the Court's own motion the appeal and cross appeal from the order dated January 9, 2013 (Appellate Division Docket No. 2013-02150), are dismissed, without costs or disbursements, as no appeal lies from an order denying a motion to modify a decision (see Matter of Colonial Penn Ins. Co. v Cudley, 144 AD2d 363); and it is further,

ORDERED that the appellant-respondent's time to perfect the appeal from the judgment is enlarged until September 27, 2013, and the joint record or appendix on appeal (see 22 NYCRR 670.8[c][1]) and the appellant-respondent's brief must be served and filed on or before that date; and it is further,

ORDERED that the respondents-appellants shall serve and file their answering brief, including the points of argument on the cross appeal, in accordance with the rules of this court (see 22 NYCRR 670.8[c][3]); and it is further,

ORDERED that the application is otherwise denied as academic.

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

ENTER:

Aprilanne Agostino

Clerk of the Court