Appellate Division: Second Judicial Department

M209353

E/sl

MARK C. DILLON, J.P.

LEONARD B. AUSTIN

ROBERT J. MILLER

HECTOR D. LASALLE, JJ.

2015-10291 In the Matter of Thomas Conway, appellant, v Joy Gartmond, respondent. (Docket No. F-13400-13/13A & B)

DECISION & ORDER ON MOTION

Motion by the respondent on an appeal from an order of the Family Court, Westchester County, dated August 28, 2015, to strike the appellant's brief or Points III and IV thereof on the ground that they refer to matter dehors the record or contains argument improperly raised for the first time on appeal, to enlarge the time to serve and file a brief, and pursuant to 22 NYCRR 130.1-1 to impose a sanction upon the appellant and/or his counsel, and for an award of costs.

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

ORDERED that the branch of the motion which is to strike Point IV of the appellant's brief is granted, Point IV of the appellant's brief is stricken, and on or before April 27, 2016, the appellant shall remove Point IV as well as the reference to Point IV in the table of contents and the words "and direct the Father's recoupment of child support" in the conclusion, from the copies of the appellant's briefs filed with the Clerk of the Court; 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, the respondent's time to serve and file a brief is enlarged until May 27, 2016, and the respondent's brief must be served and filed on or before that date; and it is further,

ORDERED that the branch of the motion which is pursuant to 22 NYCRR 130.1-1 to impose a sanction upon the appellant and/or his counsel, and for an award of costs is held in abeyance, and on or before April 27, 2016, the respondent may serve and file an affirmation or affidavit setting forth the actual expenses and attorney's fee incurred in connection with this motion, the appellant may serve and file an affirmation or affidavit in response, if any, on or before May 11, 2016, and the respondent may serve and file an affirmation or affidavit in reply, if any, on or before May 18, 2016; and it is further,

ORDERED that the motion is otherwise denied.

DILLON, J.P., AUSTIN, MILLER and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court