Appellate Division: Second Judicial Department

M210831

E/ct

L. PRISCILLA HALL, J.P.

SHERI S. ROMAN

JEFFREY A. COHEN

FRANCESCA E. CONNOLLY, JJ.

2015-05259 In the Matter of Jane D. Ritter Revocable Living Tru Sabino Biondi, respondent; Mary Rader, appellant. (File No. 380517/14)

DECISION & ORDER ON MOTION st.

Motion by the respondent to dismiss an appeal from an order of the Surrogate's Court, Nassau County, dated March 31, 2015, on the ground that it has been rendered academic by entry of, inter alia, a decree of the same court in the above-entitled proceeding dated September 17, 2015. By order to show cause dated March 1, 2016, the appellant was directed either (1) to show cause before this Court why an order should or should not be made and entered dismissing the appeal from the order on the ground that the right of direct appeal from the order terminated upon entry of the decree dated September 17, 2015, or (2) if so advised, to make a motion pursuant to CPLR 5520(c) to deem the notice of appeal from the order to be a premature notice of appeal from the decree, to deem the record and briefs filed in connection with the appeal from the order to be filed in connection with the decree, and to limit the issues raised on the appeal from the decree to the issues raised in the briefs filed in connection with the appeal from the order. Motion by the appellant pursuant to CPLR 5520(c) to deem the notice of appeal from the order to be a premature notice of appeal from the decree, to deem the record and briefs filed in connection with the appeal from the order to be filed in connection with the decree, and to limit the issues raised on the appeal from the decree to the issues raised in the briefs filed in connection with the appeal from the order.

Now, upon the order to show cause and the papers filed in response thereto, upon the papers filed in support of the respondent's motion and the papers filed in opposition thereto, and upon the papers filed in support of the appellant's motion and the papers filed in opposition thereto, it is

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

ORDERED that the appellant's motion is granted, pursuant to CPLR 5520(c) the notice of appeal from the order is deemed to be a premature notice of appeal from the decree, the record and briefs filed in connection with the appeal from the order are deemed to be filed in connection with the decree, and the issues raised on the appeal from the decree are limited to the issues raised in the briefs filed in connection with the appeal from the order; and it is further,

ORDERED that on or before May 20, 2016, the appellant shall serve and file a supplemental record containing the decree dated September 17, 2015, and is further,

ORDERED that the respondent's motion is denied.

HALL, J.P., ROMAN, COHEN and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court