Appellate Division: Second Judicial Department

M217212

E/sl

RANDALL T. ENG, P.J.

THOMAS A. DICKERSON

COLLEEN D. DUFFY

FRANCESCA E. CONNOLLY, JJ.

2015-12005 Henriette Louzoun, appellant, v Joseph Montalto, respondent. (Index No. 203149/05)

DECISION & ORDER ON MOTION

Motion by the respondent, inter alia, to dismiss an appeal from an order of the Supreme Court, Nassau County, dated October 21, 2015, in effect, on the grounds that the record on appeal contains matter dehors the record and for failure to properly settle the transcripts contained in the record on appeal, or, in the alternative, to strike the memorandum of law on pages R557 through R577 of the record on appeal, for the Court to take judicial notice of a decision and order of this Court dated May 4, 2016, in an action entitled Louzoun v Kroll Moss and Kroll, LLP (Appellate Division Docket Nos. 2014-02904, 2014-07954), and to enlarge the time to serve and file a brief. Cross motion by the appellant, in effect, for leave to serve and file a supplemental record containing certain documents. By decision and order on motion of this Court dated July 19, 2016, the matter was remitted to the Supreme Court, Nassau County, to report on whether that court considered the transcripts of proceedings which occurred on April 2, 2014, April 3, 2014, and April 4, 2014, in a proceeding entitled Matter of Montaldo v Louzoun, commenced in the Family Court, Nassau County, under Docket No. F-1931-11, contained on pages R656 through R1107 of the record on appeal and excerpts of transcripts of the proceedings in that matter which occurred on April 2, 2014, and April 4, 2014, contained on pages R1108 through R1289 of the record on appeal, in determining the motion and the cross motion that were determined by the order dated October 21, 2015, and the respondent's motion, inter alia, to dismiss the appeal and the appellant's cross motion, in effect, for leave to serve and file a supplemental record were held in abeyance in the interim. The Supreme Court, Nassau County, has issued its report dated August 4, 2016.

Upon the papers filed in support of the motion and the cross motion, and the papers filed in opposition thereto, and upon the report of the Supreme Court, Nassau County, dated August 4, 2016, it is

ORDERED that on the Court's own motion, Volume II of the record and the appellant's brief are stricken; and it is further,

ORDERED that the branch of the motion which is to dismiss the appeal is denied on condition that on or before September 26, 2016, the appellant serve and file (1) a replacement Volume II of the record which contains the material on pages R1091 through R1107, R1153, R1168, R1223, R1226 through R1228, R1254, R1255, R1259, R1261 through R1265, R1280, R1287, and R1289 of the original Volume II and omits all other material contained in the original Volume II, and (2) a replacement brief which contains appropriate references to the replacement Volume II; 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 October 31, 2016, and the respondent'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 cross motion is granted, and the replacement Volume II may contain the stipulation dated July 22, 2015, and the affidavit of Diana Hemans dated August 26, 2015.

ENG, P.J., DICKERSON, DUFFY and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court