Appellate Division: Second Judicial Department

M195150

E/sl

PETER B. SKELOS, J.P.

JOHN M. LEVENTHAL

SANDRA L. SGROI

JOSEPH J. MALTESE, JJ.

2015-01492 Jihun Kim, et al., appellants, v S & M Caterers, Inc., etc., respondent. (Index No. 6378/12)

DECISION & ORDER ON MOTION

Application by the respondent pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to serve and file a brief on an appeal from an order of the Supreme Court, Queens County, dated October 14, 2014. By order to show cause dated May 7, 2015, the parties were directed to show cause before this Court why an order should or should not be entered dismissing the appeal on the ground that the order dated October 14, 2014, was not appealable as of right and leave to appeal had not been granted, and the application was held in abeyance in the interim. The appellants' attorney has submitted an affirmation in response to the order to show cause requesting that this Court deem his notice of appeal to be an application for leave to appeal.

Now, upon the order to show cause and the papers filed in response thereto, and upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it is

ORDERED that the motion to dismiss the appeal is denied; and it is further,

ORDERED that on the Court's own motion, the notice of appeal from the order dated October 14, 2014, is deemed to be an application for leave to appeal and leave is granted; and it is further,

ORDERED that the application is granted, the respondent's time to serve and file a brief is enlarged until September 8, 2015, and the respondent's brief must be served and filed on or before that date.

SKELOS, J.P., LEVENTHAL, SGROI and MALTESE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court