Appellate Division: Second Judicial Department

M242061

E/ct

MARK C. DILLON, J.P.

RUTH C. BALKIN

ROBERT J. MILLER

HECTOR D. LASALLE, JJ.

2016-01945 Ana Ospina-Cherner, respondent, v Daniel Cherner, appellant. (Index No. 2454/13)

DECISION & ORDER ON MOTION

2016-11736

Ana Ospina-Cherner, respondent,

v Daniel Cherner, appellant.

(Index No. 2454/13)

Motion by the respondent to dismiss an appeal from an order of the Supreme Court, Westchester County, dated September 29, 2016, in effect, on the ground that the appellant's appendix and the appellant's brief contains or refers to matter dehors the record, or, in the alternative, to enlarge the time to serve and file a brief. Cross motion by the appellant to consolidate the appeal from the order dated September 29, 2016, with an appeal from a judgment of the same court dated January 20, 2016.

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

ORDERED that the branch of the motion which is to dismiss the appeal from the order dated September 29, 2016, is denied on condition that on or before January 2, 2018, the appellant serve and file a replacement appellant's appendix which contains the papers filed in connection with the motion that was determined by the order dated September 29, 2016, and does not contain motion papers which were not filed in connection with that motion, and serve and file a replacement brief which does not refer to matter dehors the record and raises issues only regarding the motion that was determined by the order dated September 29, 2016; and it is further,

ORDERED that the branch of the motion which is to enlarge the respondent's time to serve and file a brief in connection with the appeal from the order dated September 29, 2016, is granted, the respondent's time to serve and file a brief is enlarged until February 1, 2018, and the respondent's brief shall be served and filed on or before that date; and it is further,

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

ORDERED that on the Court's own motion, the appeals will be calendared together and will be argued or submitted on the same date.

DILLON, J.P., BALKIN, MILLER and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court