Appellate Division: Second Judicial Department

M183638

E/ct

RUTH C. BALKIN, J.P.

JEFFREY A. COHEN

ROBERT J. MILLER

HECTOR D. LASALLE, JJ.

2014-01413, 2014-02740 Jeanne Almeida, appellant-respondent, v Daniel Almeida, respondent-appellant. (Index No. 10-11454)

DECISION & ORDER ON MOTION

Motion by Daniel Almeida on an appeal by Jeanne Almeida from an order of the Supreme Court, Westchester County, dated December 5, 2013, and an appeal by him from a money judgment of the same court dated January 4, 2014, to dismiss the appeal from the order on the ground that the order was superseded by the money judgment. Cross motion by Jeanne Almeida pursuant to CPLR 5520(c) to deem the notice of appeal from the order to be a premature notice of appeal from the money judgment. Separate motion by Jeanne Almeida to dismiss the appeal by Daniel Almeida from the money judgment. Separate applications by Daniel Almeida pursuant to 22 NYCRR 670.8(d)(2) to enlarge his time to perfect the appeal from the money judgment, and to enlarge the time to serve and file a respondent's brief and a reply brief with respect to the appeal from the order.

Upon the papers filed in support of the motions and the cross motion and the papers filed in opposition and in relation 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 the cross motion is granted, the notice of appeal by Jeanne Almeida from the order is deemed to be a premature notice of appeal from the money judgment (see CPLR 5520[c]), the brief served and filed by Jeanne Almeida on the appeal from the order shall stand as the brief on the appeal from the money judgment, the appeal will be prosecuted under Appellate Division Docket No. 2014-02740, and Daniel Almeida shall be denominated as the respondent-appellant on the appeal and cross appeal from the money judgment; and it is further,

ORDERED that the motion by Daniel Almeida to dismiss the appeal from the order is denied as academic; and it is further,

ORDERED that on the Court's own motion, the record filed by Jeanne Almeida in connection with Appellate Division Docket No. 2014-01413 is deemed to be the joint record on the appeal and cross appeal from the money judgment under Appellate Division Docket No. 2014-02740, and on or before January 15, 2015, Jeanne Almeida shall (1) serve and file a supplemental joint record containing the money judgment and Daniel Almeida's notice of appeal from the money judgment, and (2) correct the cover pages of the record and briefs filed with the Clerk of the Court, to reflect the correct Appellate Division Docket Number and the proper Appellate Division status of the parties; and it is further,

ORDERED that the applications are granted to the extent that Daniel Almeida shall serve and file an answering brief, including points of argument in connection with his cross appeal from the money judgment (see 22 NYCRR 670.8[c][3]) on or before February 17, 2015, the reply briefs of the parties shall be served and filed in accordance with the rules of the Court (see 22 NYCRR 670.8[c][3]), and the applications are otherwise denied; and it is further,

ORDERED that Daniel Almeida shall file proof of payment of one-half of the cost of the joint record and the supplemental joint record at the time that he files his answering brief; and it is further,

ORDERED that the separate motion by Jeanne Almeida is denied.

BALKIN, J.P., COHEN, MILLER and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court