Appellate Division: Second Judicial Department

M191318

E/ct

MARK C. DILLON, J.P.

JOHN M. LEVENTHAL

CHERYL E. CHAMBERS

JOSEPH J. MALTESE, JJ.

2014-08184 Fitzgerald Stenson, respondent, v Second Atlantic Terminal Housing Corporation, appellant. (Index No. 10685/12)

DECISION & ORDER ON MOTION

Motion by the respondent to dismiss an appeal from an order of the Supreme Court, Kings County, dated July 24, 2014, on the ground that the appellant's brief refers to matter dehors the record, or, in effect, to direct the appellant to serve and file a replacement brief which does not refer to matter dehors the record, and to enlarge his time to serve and file a brief. Cross motion by the appellant to enlarge the record to include a certain letter dated July 29, 2014.

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

ORDERED that the branch of the motion which is, in effect, to direct the appellant to serve and file a replacement brief which does not refer to matter dehors the record is granted to the extent that the following material is stricken and on or before May 19, 2015, the appellant shall remove the stricken material from the copies of the briefs filed with the Clerk of the Court or serve and file a replacement brief which does not contain the stricken material:

(1) the bullet point that begins on page 1 with the words "Respondent served the summons and complaint" and ends on page 2 with the words " Attempted Unknown/Not Known'";

(2) footnote 2, located on page 2;

(3) the portion of the paragraph located on pages 7 and 8 that begins on the last line of page 7 with the words "The Service of Process Unit" through the end of that paragraph on page 8, which ends with the citation "Exhibit 1.4.1"; and

(4) the words "where, like here, process was returned to the Secretary of State with the notation Attempted Unknown/Not Known' on the envelope (pp. 2-3, fn. 2, supra," located in the parenthetical at the end of the first paragraph on page 12;

and it is further,

ORDERED that the branch of the motion which is to enlarge the respondent's time to serve and file a brief is granted, and the respondent's brief must be served and filed on or before June 23, 2015; and it is further,

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

ORDERED that the cross motion is denied.

DILLON, J.P., LEVENTHAL, CHAMBERS and MALTESE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court