Appellate Division: Second Judicial Department

M216588

S/ct

MARK C. DILLON, J.P.

THOMAS A. DICKERSON

SYLVIA O. HINDS-RADIX

JOSEPH J. MALTESE, JJ.

2013-07843, 2015-00098 Andrea Minsky, etc., appellant-respondent, v Eugene Haber, et al., respondents-appellants, et al., defendants. (Index No. 17029/08)

DECISION & ORDER ON MOTION

Motion by Eugene Haber, Edward Corbert, Amy Cobert, and Cobert, Haber & Haberon on an appeal and cross appeal from an order of the Supreme Court, Nassau County, dated May 31, 2013, and appeals from a judgment of the same court dated September 12, 2014, to dismiss the appeal from the order dated May 31, 2013, on the ground that the right of direct appeal from that order terminated with entry of the judgment dated September 12, 2014, and, upon dismissal of the appeal, for leave to withdraw their cross appeal from the order dated May 31, 2013. By decision and order on motion of this Court dated February 4, 2016, the Court directed that within 60 days after the Supreme Court, Nassau County, determines the appellant-respondent's motion to vacate the judgment dated September 12, 2014, the appellant-respondent shall either withdraw her appeal from the judgment, if the judgment is vacated, or, if the judgment is not vacated, the appellant-respondent shall move to consolidate the appeal from the order dated May 31, 2013, with the appeal from the judgment and to deem the brief filed in connection with the appeal from the order dated May 31, 2013, to be filed in connection with the appeal from the judgment to the extent that the judgment brings up for review the order dated May 31, 2013. The motion was held in abeyance pending determination by the Supreme Court, Nassau County, of the motion to vacate the judgment.

Now, on the Court's own motion, it is

ORDERED that the parties are directed to show cause why an order should or should not be entered dismissing the appeal from the order dated May 31, 2013, for failure to comply with the decision and order on motion of this Court dated February 4, 2016, as the appellant never filed a motion to vacate the judgment dated September 12, 2014, by filing an affirmation or affidavit on that issue with the Clerk of this Court on or before September 12, 2016; and it is further,

ORDERED that the Clerk of this Court, or her designee, shall serve a copy of this order to show cause on the parties by regular mail.

DILLON, J.P., DICKERSON, HINDS-RADIX and MALTESE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court