Appellate Division: Second Judicial Department

M226988

E/ct

REINALDO E. RIVERA, J.P.

SHERI S. ROMAN

ROBERT J. MILLER

COLLEEN D. DUFFY, JJ.

2015-10713 P.B. #7, LLC, respondent, v 231 Fourth Avenue Lyceum, LLC, et al., defendants, Eric Richmond, appellant. (Index No. 10035/08)

DECISION & ORDER ON MOTION

Motion by the respondent to dismiss an appeal from an order of the Supreme Court, Kings County, dated July 28, 2015, on the grounds that no appeal lies from an order entered upon the default of an appealing party and the appeal has been rendered academic. Separate motion by the appellant pro se to waive compliance with the requirements of 22 NYCRR 670.10.2(f) regarding certification of the appellant's appendix. Cross motion by the respondent to strike pages A17 through A26 and A30 of the appellant's appendix on the ground that they contain matter dehors the record, to strike Point III of the appellant's brief on the ground that it refers to matter dehors the record, and to enlarge the time to serve and file a brief.

Upon the papers filed in support of the motions and the cross motion, and the papers filed in opposition thereto, it is

ORDERED that the respondent's motion is granted to the extent that the appeal is dismissed, without costs or disbursements, on the ground that no appeal lies from an order entered upon the default of an appealing party (see CPLR 5511) and the respondent's motion is otherwise denied as academic; and it is further,

ORDERED that the appellant's motion and the cross motion are denied as academic.

RIVERA, J.P., ROMAN, MILLER and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court