Appellate Division: Second Judicial Department

M166330

E/sl

WILLIAM F. MASTRO, J.P.

LEONARD B. AUSTIN

SHERI S. ROMAN

SYLVIA O. HINDS-RADIX, JJ.

2013-06311 Brooks Banker, respondent, v Salvatore Vitanza, et al., appellants. (Index No. 1384/12)

DECISION & ORDER ON MOTION

Motion by the respondent on appeals from an order of the Supreme Court, Putnam County, dated April 25, 2013, (1) for a preference in the calendaring of appeals, (2) to strike the appellants' briefs or stated portions of the briefs on the grounds, inter alia, that they refer to matter dehors the record or improperly raise issues for the first time on appeal, (3) in effect, to strike page 78 of the joint record on the ground that it contains matter dehors the record, and (4) to enlarge the time to serve and file a brief.

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

ORDERED that the branch of the motion which is, in effect, to strike page 78 of the joint record on the ground that it contains matter dehors the record is granted, page 78 of the joint record is stricken, and on or before December 27, 2013, the appellants shall either replace page 78 of the joint record with a page that does not contain handwritten notations or serve and file a replacement joint record that does not contain the handwritten notations that are on page 78 of the joint record; and it is further,

ORDERED that the branch of the motion which is for a preference in the calendaring of the appeals is granted, and the appeals will be calendared after all of the briefs have been filed; and it is further,

ORDERED that the branch of the motion which is to strike the appellants' briefs, or stated portions of the briefs, on the ground that they improperly raise issues for the first time on appeal is denied without prejudice to raising any appropriate argument in the respondent's brief; 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's time to serve and file a brief is enlarged until January 27, 2014, and the respondent's brief must be served and filed on or before that date; and it is further,

ORDERED that the motion is otherwise denied.

MASTRO, J.P., AUSTIN, ROMAN and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court