Appellate Division: Second Judicial Department

M218013

E/sl

JOHN M. LEVENTHAL, J.P.

LEONARD B. AUSTIN

ROBERT J. MILLER

SYLVIA O. HINDS-RADIX, JJ.

2015-11472, 2015-11473 Nancy Eschemuller, appellant, v John Eschemuller, respondent. (Index No. 201636/07)

DECISION & ORDER ON MOTION

2016-04813

Nancy Eschemuller, respondent,

v John Eschemuller, appellant.

(Index No. 201636/07)

Appeals by Nancy Eschemuller from two orders of the Supreme Court, Nassau County, dated May 1, 2015, and September 21, 2015, respectively, and appeal by John Eschemuller from a judgment of the same court entered January 19, 2016. Application by Nancy Eschemuller pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to perfect the appeal from the order dated September 21, 2015. By order to show cause dated July 25, 2016, Nancy Eschemuller was directed to show cause before this Court why an order should or should not be made and entered dismissing the appeal from the order dated September 21, 2015, on the ground that the right of direct appeal terminated upon entry of the judgment in the above-entitled action, or make a motion pursuant to CPLR 5520(c) to deem the notice of appeal from the order dated September 21, 2015, to be a premature notice of cross appeal from the judgment. Motion by Nancy Eschemuller to deem the notice of appeal from the order dated September 21, 2015, to be a premature notice of cross appeal from the judgment.

Now, upon the order to show cause and the papers filed in response thereto, upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, and upon the papers filed in support of the motion by Nancy Eschemuller and the papers filed in opposition thereto, it is

ORDERED that the motion by Nancy Eschemuller is granted, the notice of appeal from the order dated September 21, 2015, is deemed to be a premature notice of cross appeal from the judgment (see CPLR 5520[c]), and the appeal and cross appeal from the judgment shall be prosecuted under Appellate Division Docket No. 2016-04813; and it is further,

ORDERED that on the Court's own motion, the appeal from the order dated May 1, 2015, is dismissed on the ground that the right of direct appeal therefrom terminated upon entry of the final judgment in the above-entitled action (see Matter of Aho, 39 NY2d 241); and it is further,

ORDERED that the motion to dismiss the appeal from the order dated September 21, 2015, is denied as academic; and it is further,

ORDERED that the application is denied as academic.

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

ENTER:

Aprilanne Agostino

Clerk of the Court