Appellate Division: Second Judicial Department

M224836

J/sl

JOHN M. LEVENTHAL, J.P.

SANDRA L. SGROI

JEFFREY A. COHEN

HECTOR D. LASALLE, JJ.

2015-10364, 2016-06240 J.K. Petroleum, Inc., respondent, v JMP USA, Inc., appellant. (Index No. 5151/13)

DECISION & ORDER ON MOTION

Appeals by JMP USA, Inc., from an order of the Supreme Court, Nassau County, dated August 31, 2015, and a judgment of the same court entered October 8, 2015. By decision and order on motion of this Court dated June 28, 2016, that branch of the respondent's motion which was to dismiss the appeal from the order dated August 31, 2015, was denied on condition that on or before July 28, 2016, the appellant serve and file a replacement appendix that complied with the CPLR and the rules of this Court, and contained a copy of the judgment entered October 8, 2015, and a replacement brief that cited to the replacement appendix. The appellant failed to serve and file the replacement appendix and replacement brief. By order to show cause dated August 24, 2016, the parties were directed to show cause why the appeals should or should not be dismissed on the ground that the appellant failed to comply with the decision and order on motion of this Court dated June 28, 2016, by filing an affidavit or affirmation on that issue with the Clerk of this Court and by serving one copy of the same on each other. Anthony L. Mascolo, the attorney for the appellant, filed an affirmation dated September 7, 2016, in response to the motion to dismiss the appeals. By decision and order on motion of this Court dated November 2, 2016, Mr. Mascolo was directed to either (1) confirm in writing that he continues to represent the appellant on the appeals and file with the Clerk of this Court proof of service of the affirmation dated September 7, 2016, upon the appellant, or (2) withdraw the affirmation dated September 7, 2016, and file a valid consent to change attorney that is signed by an agent authorized to execute the consent to change attorney on behalf of the appellant and which identifies the new attorney who will represent the appellant on the appeals (see CPLR 321[a]). Mr. Mascolo filed a letter dated November 9, 2016, with attachments, which did not did not provide any information or take any action set forth in the decision and order on motion dated November 2, 2016.

Now, upon the order to show cause and the papers filed in response thereto, and upon the papers filed in response to the decision and order on motion dated November 2, 2016, it is

ORDERED that the motion to dismiss the appeals is denied; and it is further,

ORDERED that on or before February 21, 2017, Anthony L. Mascolo, the attorney for the appellant, shall (1) serve and file a replacement appendix that complies with the CPLR and the rules of this Court, and contains the judgment entered October 8, 2015, and a replacement brief that cites to the replacement appendix, in accordance with the decision and order on motion dated June 28, 2016, and (2) serve upon the appellant a copy of the replacement appendix, the replacement brief, and a copy of this decision and order on motion, and file proof of service with this Court; and it is further,

ORDERED that on the Court's own motion, the respondent's time to serve and file a brief is enlarged until March 28, 2017, and the respondent's brief must be served and filed on or before that date.

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

ENTER:

Aprilanne Agostino

Clerk of the Court