Appellate Division: Second Judicial Department

M213610

E/sl

REINALDO E. RIVERA, J.P.

JOHN M. LEVENTHAL

SYLVIA O. HINDS-RADIX

VALERIE BRATHWAITE NELSON, JJ.

2015-11601 NYCTL 1998-1 Trust, etc., plaintiff-respondent, v Glizer Rodriguez, also known as Glizer R. Lozada, appellant, et al., defendants; BH2105 Atlantic, LLC, nonparty-respondent. (Index No. 24609/02)

DECISION & ORDER ON MOTION

Motion by the appellant pro se on an appeal from an order of the Supreme Court, Kings County, dated October 9, 2015, to waive compliance with the requirements of 22 NYCRR 670.10.2(f) regarding certification of the appellant's appendix. Cross motion by the respondent, inter alia, to dismiss the appeal on the grounds that (1) portions of the order deny reargument and (2) the appeal has been rendered academic, and to strike the appellant's appendix and brief on the ground that the appellant's appendix is inadequate and contains matter dehors the record and the appellant's brief refers to matter dehors the record, and to enlarge the time to serve and file a brief. Application by the nonparty-respondent pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to serve and file a brief

Upon the papers filed in support of the motion and the cross motion and the papers filed in opposition 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 branch of the cross motion which is to dismiss the appeal is held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof; and it is further,

ORDERED that the branch of the cross motion which is to strike the appellant's appendix and brief is granted, and on or before July 21, 2016, the appellant shall serve and file a replacement appendix that contains all papers submitted to the Supreme Court in connection with the motion and cross motion that were determined by the order dated October 9, 2015, and does not contain matter dehors the record and a replacement brief that does not refer to matter dehors the record; and it is further,

ORDERED that the branch of the cross motion which is to enlarge the plaintiff-respondent's time to serve and file a brief and the application to enlarge the nonparty-respondent's time to serve and file a brief are denied as unnecessary; and it is further,

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

ORDERED that the appellant's motion is denied with leave to renew by a motion made simultaneously with the filing of the appellant's replacement appendix and brief.

RIVERA, J.P., LEVENTHAL, HINDS-RADIX and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court