of the State of New York for the 2nd, 11th & 13th judicial Districts

MICHAEL L. PESCE, P.J.

THOMAS P. ALIOTTA

MARTIN M. SOLOMON, JJ.

DECISION & ORDER ON MOTION

Motion by respondent to dismiss as untimely an appeal from an order of the Civil Court of the City of New York, Kings County, entered October 26, 2016. The order granted respondent's motion to vacate an income execution and restore the matter to the Civil Court's calendar. Cross motion by appellant, in effect, to vacate a decision and order on motion of this court dated October 18, 2017, which struck the appeal from this court's appeals calendar and general calendar on the ground that a transcript of the October 26, 2016 proceedings was necessary and had not been made part of the record on appeal. In support of the cross motion, appellant's counsel avers that no record of the October 26, 2016 proceedings exists.

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

ORDERED that respondent's motion is denied; and it is further,

ORDERED that appellant's cross motion is granted; and it is further,

ORDERED, on the court's own motion, that the order of the Civil Court entered October 26, 2016 is summarily reversed and the matter is remitted to the Civil Court for a new determination of respondent's motion to vacate the income execution and restore the matter to the Civil Court's calendar.

As it appears from the record and the briefs that, in determining the motion giving rise to the Civil Court's order entered October 26, 2016, the court relied on information provided at the October 26, 2016 proceedings, and as no transcript of these proceedings is available, proper appellate review cannot be had, and the order must be reversed and the matter remitted for a new determination of respondent's motion.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk