Appellate Division: Second Judicial Department

M223550

E/afa

JOHN M. LEVENTHAL, J.P.

SANDRA L. SGROI

HECTOR D. LASALLE

BETSY BARROS, JJ.

2015-11856 State of New York, et al., respondents, v Ruth Winkle, et al., defendants, Alan Risi, appellant. (Index No. 115/07)

DECISION & ORDER ON MOTION

2016-04291

State of New York, et al., respondents,

v Ruth Winkle, et al., appellants, et al.,

defendant.

(Index No. 115/07)

2016-04395

State of New York, et al., respondents,

v Ruth Winkle, et al., appellants, et al.,

defendants.

(Index No. 115/07)

Separate motions by the respondents to dismiss an appeal by Alan Risi from an order of the Supreme Court, Queens County, entered February 25, 2016, as untimely taken and to dismiss an appeal from an order of the same court dated October 20, 2015, on the ground that the right of direct appeal terminated upon entry of a judgment in the above-entitled action on February 26, 2016, or, in the alternative, to enlarge the time to serve and file a brief in connection with the appeal from the order dated October 20, 2015. Separate cross motion by the appellant Alan Risi to consolidate the appeal from the order dated October 20, 2015, with the appeals from the order entered February 25, 2016. Separate motion by the appellants Ruth Winkle and William Winkle to enlarge their time to perfect an appeal from the judgment entered February 26, 2016.

Upon the papers filed in support of the motions by the respondents and the cross motion, and the papers filed in opposition thereto, and upon the papers filed in support of the motion by the appellants Ruth Winkle and William Winkle and no papers having been filed in opposition or in relation thereto, it is

ORDERED that the branch of the motion by the respondents which is to dismiss the appeal by Alan Risi from the order entered February 25, 2016, is granted and the appeal by Alan Risi from the order entered February 25, 2016, is dismissed, without costs or disbursements (see CPLR 5513[a]) and on the ground that the right of direct appeal from that order terminated upon entry of the final judgment on February 26, 2016 (see Matter of Aho, 39 NY2d 241); and it is further,

ORDERED that on the Court's own motion, the appeal by Ruth Winkle and William Winkle from the order dated February 25, 2016, is dismissed, without costs or disbursements, as the right of direct appeal from that order terminated upon entry of the final judgment on February 26, 2016 (see Matter of Aho, 39 NY2d 241); and it is further,

ORDERED that the branch of the motion by the respondents to dismiss the appeal by Alan Risi from the order dated October 20, 2015, is granted unless on or before February 8, 2017, the appellant Alan Risi moves to deem the notice of appeal from the order dated October 20, 2015, to be a premature notice of appeal from the judgment to the extent that the issues raised in connection with the appeal from the order dated October 20, 2015, are brought up for review on the appeal from the judgment (see CPLR 5501[a][1]), to deem the appendix he filed in connection with the appeal from the order dated October 20, 2015, to be a joint appendix on the appeal from the judgment, to deem the brief filed in connection with the appeal from the order to be the brief filed in connection with his appeal from the judgment, and to limit the issues raised on his appeal from the judgment to the issues raised in the brief filed in connection with the appeal from the order dated October 20, 2015; and it is further,

ORDERED that cross motion by the appellant Alan Risi is denied as academic; and it is further,

ORDERED that the motion by the appellants Ruth Winkle and William Winkle is granted, and the time for those appellants to perfect their appeal from the judgment is enlarged until April 10, 2017.

LEVENTHAL, J.P., SGROI, LASALLE and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court