Appellate Division: Second Judicial Department

M238438

E/sl

RANDALL T. ENG, P.J.

LEONARD B. AUSTIN

SHERI S. ROMAN

JEFFREY A. COHEN, JJ.

2016-06911 Lazaro Sotolongo, appellant, v Robert L. Cristofaro, etc., et al., respondents. (Index No. 55796/11)

DECISION & ORDER ON MOTION

Motion by the respondent Robert L. Cristofaro, in effect, for leave to renew his prior motion to dismiss an appeal from a judgment of the Supreme Court, Westchester County, entered May 31, 2016, insofar as taken against him on the ground that it was untimely taken, which was determined by decision and order on motion of this Court dated October 27, 2016. Motion by the appellant to enlarge the time to perfect the appeal. By order to show cause dated July 10, 2017, the parties, inter alia, were directed to show cause before this Court why an order should or should not be made and entered dismissing the appeal on the ground that the judgment entered May 31, 2016, must be vacated as it was merely a duplicate of a judgment of the same court entered May 18, 2016, and the motions were held in abeyance in the interim.

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 the respondent Robert L. Cristofaro and the motion by the appellant, and the papers filed in opposition thereto, it is

ORDERED that the motion by the respondent Robert L. Cristofaro is granted and the appeal is dismissed, without costs or disbursements, insofar as taken against the respondent Robert L. Cristofaro (see CPLR 5513[a]); and it is further,

ORDERED that on the Court's own motion, the notice of appeal from the judgment entered May 31, 2016, is deemed to be a notice of appeal from the judgment entered May 18, 2016, insofar as taken against the defendant Elliot G. Gross (see CPLR 5512); and it is further,

ORDERED that the motion to dismiss the appeal from the judgment entered May 31, 2016, on the ground that the judgment entered May 31, 2016, must be vacated as it was merely a duplicate of the judgment entered May 18, 2016, is denied; and it is further,

ORDERED that the motion to enlarge the time to perfect the appeal is granted to the extent that the time to perfect the appeal insofar as taken against the respondent Elliot G. Gross is enlarged until November 16, 2017, the record or appendix on the appeal and the appellant's brief shall be served and filed on or before that date, and the application is otherwise denied as academic; and it is further,

ORDERED that on the Court's own motion, the judgment entered May 31, 2016, is vacated (see Matter of Guarraci, 100 AD3d 633; Kraut v New York City Tr. Auth., 306 AD2d 383; CPLR 5016[b]).

ENG, P.J., AUSTIN, ROMAN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court