Degraw Construction Group, Inc. v McGowan Builders, Inc.
Motion No: 2018-00940
Slip Opinion No: 2018 NY Slip Op 84965(U)
Decided on October 1, 2018
Appellate Division, Second Department, Motion Decision
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This motion is uncorrected and is not subject to publication in the Official Reports.


Supreme Court of the State of New York

Appellate Division: Second Judicial Department

M255833

E/rr

RUTH C. BALKIN, J.P.

SANDRA L. SGROI

ROBERT J. MILLER

FRANCESCA E. CONNOLLY, JJ.

2018-00940, 2018-05951

Degraw Construction Group, Inc.,

respondent-appellant, v McGowan Builders,

Inc., et al., appellants-respondents, Y.M.C.A.

of Greater NY, et al., respondents.

(Index No. 8072/14)

DECISION & ORDER ON MOTION

Motion by Degraw Construction Group, Inc., to dismiss an appeal from an order of the Supreme Court, Kings County, dated September 5, 2017, on the ground that the right of direct appeal from the order terminated upon entry of a judgment of the same court dated March 23, 2018, or, in the alternative, to enlarge its time to serve and file a brief in connection with the appeal from the order.

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

ORDERED that on the Court's own motion, the notice of appeal by McGowan Builders, Inc., and Liberty Mutual Insurance Company from the order is deemed also to be a notice of appeal from the judgment (see CPLR 5501[c]), the notice of appeal by Degraw Construction Group, Inc., from the judgment is deemed to be a notice of cross appeal, the appeals and the cross appeal are consolidated, and on or before October 29, 2018, McGowan Builders, Inc., and Liberty Mutual Insurance Company shall correct the covers of the brief and record filed with the Clerk of this Court to reflect the foregoing and serve and file a supplemental joint record containing the judgment and the notice of cross appeal by Degraw Construction Group, Inc., from the judgment; and it is further,

ORDERED that the branch of the motion which is to dismiss the appeal from the order is held in abeyance and referred to the panel of Justices hearing the appeals and cross appeal for determination upon the argument or submission thereof; and it is further,

ORDERED that the branch of the motion which is to enlarge the time of Degraw Construction Group, Inc., to serve and file a brief is granted and on or before November 28, 2018, Degraw Construction Group, Inc., shall serve and file an answering brief, including its points of argument on its cross appeal (see 22 NYCRR 1250.9[f][1][4]).

BALKIN, J.P., SGROI, MILLER and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court