Appellate Division: Second Judicial Department

M222702

E/sl

CHERYL E. CHAMBERS, J.P.

JEFFREY A. COHEN

JOSEPH J. MALTESE

BETSY BARROS, JJ.

2016-04935, 2016-06225 Franco Belli Plumbing and Heating and Sons, Inc., respondent, v Charles A. Dimino, et al., appellants. (Index No. 10280/12)

DECISION & ORDER ON MOTION

Motion by the respondent on appeals from two orders of the Supreme Court, Kings County, dated March 2, 2016, and May 25, 2016, respectively, to strike pages R1637 through R1643 of the record on the ground that those pages contain matter dehors the record, to strike Section I(A) of the appellants' brief on the ground that the arguments in that section improperly raise issues for the first time on appeal and refer to matter dehors the record, to strike Section III of the appellants' brief on the ground that it improperly raises issues for the first time on appeal, to direct the appellants to serve and file a supplemental record containing certain documents, and to enlarge its time to serve and file a brief. Application by the appellant to strike pages R1625 through R1636 of the record if pages R1637 through R1643 are stricken.

Upon the papers filed in support of the motion and no papers having been filed in opposition or in relation thereto, it is

ORDERED that the branch of the motion which is to strike pages R1637 through R1643 is granted; and it is further,

ORDERED that the application is granted and pages R1625 through R1636 of the record are stricken; and it is further,

ORDERED that on or before January 4, 2017, the appellants shall remove the stricken material from the copies of the record filed with the Clerk of this Court or serve and file a replacement record that does not contain the stricken material; and it is further, ORDERED that the branches of the motion which are to strike section I(A) and III of the appellants' brief are held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof; and it is further,

ORDERED that the branch of the motion which is to direct the appellants to serve and file a supplemental record containing certain documents is granted, and on or before January 4, 2017, the appellants shall serve and file a supplemental record containing the letter dated May 3, 2016, with attachments, annexed to the motion papers as Exhibit B, or incorporate the material in the replacement record; 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 February 3, 2017, and the respondent's brief must be served and filed on or before that date.

CHAMBERS, J.P., COHEN, MALTESE and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court