Appellate Division: Second Judicial Department

M240018

E/afa

REINALDO E. RIVERA, J.P.

JOHN M. LEVENTHAL

JOSEPH J. MALTESE

COLLEEN D. DUFFY, JJ.

2012-08916 Michael Naughton, etc., et al., appellants, v Duval H. Naughton, Jr., et al., respondents. (Index No. 35280/07)

DECISION & ORDER ON MOTION

Motion by the respondent Countrywide Home Loans, Inc., pursuant to CPLR 1021 to dismiss an appeal from an interlocutory judgment of the Supreme Court, Kings County, dated July 25, 2012, for failure to substitute a personal representative for the deceased appellant, Lynn F. Naughton. Application by the appellants, in effect, to substitute Rachel Eva St. Clair Woodall, as ancillary administrator of the estate of Lyn F. Peachy, also known as Lyn Fannie Peachey, for the deceased appellant Lynn F. Naughton, and to amend the caption accordingly. Motion by the appellants to direct the respondent Duval H. Naughton, Jr., to provide certain documents to the appellants' counsel, and to enlarge the time to serve and file a supplemental record. Cross motion by the respondent Duval H. Naughton, Jr., inter alia, to dismiss the appeal for failure to timely serve and file the supplemental record and on the ground that the appeal has been rendered academic, or, in the alternative, to direct the appellants to serve and file a supplemental record containing the transcript of a hearing which occurred on March 23, 2010, and settle the transcripts contained in the supplemental record, and to hold the appeal in abeyance pending the appointment of a personal representative of the deceased appellant, Lynn F. Naughton.

Upon the papers filed in support of the appellants' motion and the cross motion, and the papers filed in opposition thereto, upon the papers filed in support of the motion of the respondent Countrywide Home Loans, Inc., and the papers filed in opposition and in relation thereto, and upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it is

ORDERED that the application is granted, and Rachel Eva St. Clair Woodall, as ancillary administrator of the estate of Lyn F. Peachy, also known as Lyn Fannie Peachey, is substituted for the deceased appellant Lynn F. Naughton, and the caption is amended accordingly; and it is further,

ORDERED that the motion by the respondent Countrywide Home Loans, Inc., is denied; and it is further,

ORDERED that the branch of the appellants' motion which is to direct the respondent Duval H. Naughton, Jr., to provide certain documents to the appellants' counsel is granted to the extent that on or before November 24, 2017, counsel for the respondent Duval H. Naughton, Jr., shall make available to the appellants for photocopying plaintiffs' Exhibit 2.1, the errata sheet for the deposition of Lynn F. Naughton which occurred on March 25, 2009, the affirmation of Yvette Dudley dated December 1, 2010, unmodified copies of the documents found on pages 799, and 810 through 812 of the record, if in the possession of the respondent Duval H. Naughton, Jr., or his counsel, so that the appellants' counsel may photocopy the material at the appellants' expense; and it is further,

ORDERED that the branch of the cross motion which is to dismiss the appeal on the ground that it has been rendered academic is 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 appellants' motion which is to extend the time to serve and file a supplemental record and the branch of the cross motion which is to direct that the appellants to include the transcript of the proceedings which occurred on March 23, 2010, in the supplemental record and to direct the appellants to settle the transcripts contained in the supplemental record are granted, and on or before December 26, 2017, the appellants shall serve and file a supplemental record containing the settled transcript of proceedings which occurred on March 23, 2010, March 25, 2010, and April 15, 2010, the exhibits admitted into evidence during those proceedings, and the material listed in paragraphs 24 and 25 of the affirmation of Ian Anderson dated September 16, 2013, filed in support of the motion that was determined by the decision and order on motion of this Court dated December 5, 2013; and it is further,

ORDERED that the branch of the cross motion which is to hold the appeal in abeyance pending the appointment of a personal representative of the deceased appellant, Lynn F. Naughton, is denied as academic; and it is further,

ORDERED that the cross motion is otherwise denied; and it is further,

ORDERED that on the Court's own motion, the respondents' time to serve and file their respective briefs is enlarged until January 25, 2018, and the respondents' briefs, if any, shall be served and filed on or before that date.

RIVERA, J.P., LEVENTHAL, MALTESE and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court