Appellate Division: Second Judicial Department

M221828

E/sl

REINALDO E. RIVERA, J.P.

CHERYL E. CHAMBERS

JOSEPH J. MALTESE

HECTOR D. LASALLE, JJ.

2016-04112 Maureen Vicchiarelli, et al., appellants, v Cold Spring Hills Realty, Co., LLC, respondent. (Index No. 4812/14)

DECISION & ORDER ON MOTION

Appeal by Maureen Vicchiarelli and Michael Vicchiarelli from an order of the Supreme Court, Suffolk County, dated March 2, 2016. Application by Maureen Vicchiarelli, pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to perfect the appeal. By order to show cause dated October 19, 2016, the parties were directed to show cause before this Court why an order should or should not be made and entered dismissing the appeal from so much of the order as dismissed the complaint insofar as asserted on behalf of Michael Vicchiarelli on the ground that the appeal taken on his behalf was a nullity and the application was held in abeyance in the interim. Motion by Maureen Vicchiarelli, individually and as executrix of the estate of Michael Vicchiarelli, deceased, inter alia, to withdraw the claim by Michael Vicchiarelli and to enlarge the time of Maureen Vicchiarelli, individually, to perfect her appeal.

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

ORDERED that the branch of the motion by Maureen Vicchiarelli which is to withdraw the claim by Michael Vicchiarelli is denied, without prejudice to Maureen Vicchiarelli as executrix of the estate of Michael Vicchiarelli seeking appropriate relief in the Supreme Court, if she be so advised; and it is further,

ORDERED that the motion of this Court to dismiss the appeal from so much of the order as dismissed the complaint insofar as asserted by Michael Vicchiarelli is granted, the appeal from so much of the order as dismissed the complaint insofar as asserted by Michael Vicchiarelli is dismissed, without costs or disbursements (see Hemphill v Rock, 87 AD2d 836), and that portion of the order dated March 2, 2016 is vacated (see Krysa v Estate of Qyra, 136 AD3d 760; Gorbaty v Brodsky, 129 AD3d 1023); and it is further,

ORDERED that the branch of the motion by Maureen Vicchiarelli which is, in effect, to enlarge the time of Maureen Vicchiarelli, individually, to perfect her appeal and the branch of the application for that relief are granted, the time to perfect the appeal by Maureen Vicchiarelli is enlarged until February 9, 2017, and the record or appendix and the brief of Maureen Vichiarelli must be served and filed on or before that date; and it is further,

ORDERED that the motion by Maureen Vicchiarelli and the application are otherwise denied.

RIVERA, J.P., CHAMBERS, MALTESE and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court