Matter of Bornstein v Blue Diamond Capital, LLC
Motion No: 2010-03612
Slip Opinion No: 2016 NY Slip Op 80916(U)
Decided on July 28, 2016
Appellate Division, Second Department, Motion Decision
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This motion is uncorrected and is not subject to publication in the Official Reports.


Supreme Court of the State of New York

Appellate Division: Second Judicial Department

M215467

E/afa

JOHN M. LEVENTHAL, J.P.

ROBERT J. MILLER

SYLVIA O. HINDS-RADIX

COLLEEN D. DUFFY, JJ.

2010-03612

In the Matter of Benjamin Bornstein, appellant,

et al., petitioner, v Blue Diamond Capital, LLC,

et al., respondents.

(Index No. 9615/07)

DECISION & ORDER ON MOTION

Motion by the respondent Destry Toney to strike the appellant's record and the appellant's brief, or stated portions thereof, on an appeal from a judgment of the Supreme Court, Westchester County, dated February 1, 2010, on the ground that they contain or refer to matter dehors the record, to direct the appellant to serve and file a supplemental record, to impose a sanction upon the appellant and his counsel, and to enlarge the time to serve and file a brief. Application by the appellant to deem the record on appeal to be an appendix.

Upon the papers filed in support of the 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 branches of the motion which are to strike the record and the appellant's brief, and to direct the appellant to serve and file a supplemental record are granted, and on or before August 29, 2016, the appellant shall serve and file a replacement record which does not contain matter dehors the record and includes the material omitted from the original record and a replacement brief that does not refer to matter dehors the record; and it is further,

ORDERED that the branch of the motion which is to enlarge the respondent Destry Toney's time to serve and file a brief is granted, the movant's time to serve and file a brief is enlarged until September 29, 2016, and the movant's brief must be served and filed on or before that date; and it is further,

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

ORDERED that the application is denied with leave to file a motion for that relief.

LEVENTHAL, J.P., MILLER, HINDS-RADIX and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court