Appellate Division: Second Judicial Department

M208091

E/ct

REINALDO E. RIVERA, J.P.

LEONARD B. AUSTIN

SANDRA L. SGROI

BETSY BARROS, JJ.

2015-01466, 2015-04957, 2015-07394, 2015-07881 Maurizio Oppedisano, et al., appellants, v Frank Arnold, respondent. (Index No. 709138/14)

DECISION & ORDER ON MOTION

Motion by the respondent on an appeals from three orders of the Supreme Court, Queens County, entered February 26, 2015, June 8, 2015, and July 29, 2015, respectively, and an order and judgment (one paper) of the same court entered July 29, 2015, to dismiss the appeal from the order entered February 26, 2015, on the ground that the right of direct appeal therefrom terminated upon entry of the order and judgment, and to treat the record and briefs filed in connection with that order to be filed in connection with the appeal from the order and judgment. Separate motion by the respondent to dismiss the appeal from the order entered June 8, 2015, on the ground that the right of direct appeal therefrom terminated upon entry of the order and judgment, and to treat the record and briefs filed in connection with that order to be filed in connection with the appeal from the order and judgment. Separate motion by the respondent to treat the records and briefs filed in connection with the orders entered February 26, 2015, and June 8, 2015, respectively, to be filed in connection with the appeal from the order and judgment, for a preference in the calendaring of that appeal, and to direct the appellants to file an undertaking. Separate motion by the respondent, inter alia, to dismiss the appeal from the order entered July 29, 2015, on the ground that no appeal lies as of right from an order that is not the result of a motion made on notice.

Three separate cross motions by the appellants, inter alia, to continue a stay which was granted by decision and order on motion of this Court dated August 13, 2015, pending the hearing and determination of appeals from the orders entered February 26, 2015, and June 8, 2015, in the event that those appeals are dismissed, in effect, to consolidate the appeals from the orders entered February 26, 2015, and June 8, 2015, with the appeal from the order and judgment and for leave to serve and file a supplemental brief raising issues in connection with the appeal from the order and judgment, to hear the appeals together, and to enlarge the time to serve and file a reply brief in connection with the appeal from the order entered June 8, 2015. Application by the appellants pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to serve and file a reply brief in connection with the appeal from the order entered June 8, 2015.

Upon the papers filed in support of the motions and the cross motions, and the papers filed in opposition or in relation thereto, it is

ORDERED that the branches of the motions which are to dismiss the appeals from the orders entered February 26, 2015 (Appellate Division Docket No. 2015-01466), and June 8, 2015 (Appellate Division Docket No. 2015-04957), on the ground that the right of direct appeal therefrom terminated upon entry of the order and judgment are held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof; and it is further,

ORDERED that the branches of the cross motions which are to continue the stay pending the hearing and determination of appeals from the orders entered February 26, 2015, and June 8, 2015, in the event that those appeals are dismissed are denied as academic; and it is further,

ORDERED the branches of the cross motions which are, in effect, to consolidate the appeal from the order entered June 8, 2015 (Appellate Division Docket No. 2015-4957), with the appeal from the order and judgment (Appellate Division Docket No. 2015-07394) and for leave to serve and file a supplemental brief, the branches of the motions which are to treat the records and briefs filed in connection with the order entered June 8, 2015, to be filed in connection with the appeal from the order and judgment, the branches of the cross motions which are to enlarge the time to serve and file a reply brief in connection with the appeal from the order entered June 8, 2015, and the application to enlarge the time to serve and file a reply brief are granted, on or before April 18, 2016, the appellants may serve and file a reply brief in connection with the appeal from the order entered June 8, 2015; on or before April 27, 2016, the appellants shall serve and file a supplemental record containing the order and judgment, as well as the notice of appeal from the order and judgment, and, if so advised, a supplemental brief raising any additional issues arising on the appeal from the order and judgment; the respondent shall serve and file a brief in response to the appellants' supplemental brief, if any, on or before May 18, 2016, and the appellants shall serve and file a supplemental reply brief, if any, on or before May 31, 2016; and it is further,

ORDERED that the branches of the cross motions which are to hear together the appeals from the orders entered February 26, 2015, and June 8, 2015, and the appeal from the order and judgment entered July 29, 2015, are granted and those appeals will be calendared together and will be argued or submitted on the same date; and it is further,

ORDERED that the branch of the motion which is for a preference is granted; and it is further,

ORDERED that the branch of the motion which is to dismiss the appeal from the order entered July 29, 2015 (Appellate Division Docket No. 2015-07881) is granted, and that appeal is dismissed, without costs or disbursements, on the ground that no appeal lies as of right from an order that is not the result of a motion made on notice and leave to appeal has not been granted (see CPLR 5701); and it is further,

ORDERED that the motions and cross motions are otherwise denied.

RIVERA, J.P., AUSTIN, SGROI and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court