Appellate Division: Second Judicial Department

M169945

S/sl

PETER B. SKELOS, J.P.

PLUMMER E. LOTT

JEFFREY A. COHEN

SYLVIA O. HINDS-RADIX, JJ.

2013-01916, 2013-05548 BAC Home Loan Servicing, LP, etc., respondent, v Mitch N. Paulsen, appellant, et al., defendant. (Index No. 6109/10)

DECISION & ORDER ON MOTION

Motion by the respondent to dismiss appeals from two orders of the Supreme Court, Nassau County, entered January 8, 2013, and April 11, 2013, respectively, on the grounds that (1) the appeals were improperly consolidated, and/or (2) that the record contains and the appellant's brief refers to matter dehors the record or, alternatively, to direct the appellant to correct the record and appellant's brief, and for an award of costs. Cross motion by the appellant for leave to correct the appellant's brief. By decision and order on motion of this Court dated December 30, 2013, the matter was remitted to the Supreme Court, Nassau County, to report on (1) whether that court considered the material attached as Exhibits B, C, and D, or the material attached as Exhibits E, F, and G to the respondent's motion papers, and (2) whether that court considered the material contained on pages 312 through 316 of the record, in determining the motion and cross motion that resulted in the order entered January 8, 2013, and the branches of the respondent's motion which are to dismiss the appeals on the ground that the record and appellant 's brief contain matter dehors the record and/or to direct the appellant to correct the record and appellant's brief and the appellant's cross motion for leave to correct the appellant's brief were held in abeyance in the interim. The Supreme Court, Nassau County, has filed its report.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the papers filed in support of the cross motion and no papers having been filed in opposition or in relation thereto, and upon the report of the Supreme Court, Nassau County, and the papers submitted in response thereto, it is

ORDERED that the branch of the respondent's motion which is to direct the appellant to correct the record and the appellant's brief is granted, and on or before March 28, 2014, the appellant shall remove from the record on file with the Clerk of this Court, the material listed in paragraphs b and c of the report of the Supreme Court, Nassau County, and shall insert in the record the material listed in paragraph a of the report, or shall serve and file a replacement record; the appellant's brief is stricken and on or before March 28, 2014, the appellant shall serve and file a replacement brief which does not refer to matter dehors the record; and it is further,

ORDERED that the respondent's motion is otherwise denied; and it is further,

ORDERED that the appellant's motion to correct his brief is denied as academic in light of the determination of the respondent's motion.

SKELOS, J.P., LOTT, COHEN and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court