Appellate Division: Second Judicial Department

M256850

E/afa

JOHN M. LEVENTHAL, J.P.

SANDRA L. SGROI

FRANCESCA E. CONNOLLY

LINDA CHRISTOPHER, JJ.

2017-13287 Benjamin Nickens, etc., respondent-appellant, v NYCTA, et al., appellants-respondents. (Index No. 1716/14)

DECISION & ORDER ON MOTION

On the Court's own motion, it is

ORDERED that the decision and order on motion of this Court dated October 19, 2018, in the above-entitled case is recalled and vacated, and the following decision and order on motion is substituted therefor:

Motion by the respondent-appellant, inter alia, to strike pages 1394 through 1606 of the joint record on an appeal and a cross appeal from an order of the Supreme Court, Kings County, dated October 13, 2017, on the ground that they contain matter dehors the record or, in the alternative, to remit the matter to the Supreme Court, Kings County, for a determination as to whether those papers were considered in determining the motion and cross motion which resulted in the order dated October 13, 2017. Separate motion by the respondent-appellant to enlarge the time to serve and file a brief.

Upon the papers filed in support of the motion, inter alia, to strike pages 1394 through 1606 of the joint record and the papers filed in opposition thereto, and upon the papers filed in support of the motion to enlarge the respondent-appellant's time to serve and file a brief and no papers having been filed in opposition or in relation thereto, it is

ORDERED that the motion, inter alia, to strike pages 1394 through 1606 of the joint record is granted to the extent that pages 1394 through 1606 of the joint record are stricken, on or before November 13, 2018, the appellants-respondents shall remove pages 1394 through 1606 from the copies of the joint record filed with the Clerk of the Court, or serve and file a replacement joint record which does not contain the stricken material, and the motion is otherwise denied; and it is further,

ORDERED that the separate motion to enlarge the time to serve and file a brief is granted, the respondent-appellant's time to serve and file a brief is enlarged until December 13, 2018, and the answering brief, including the points of argument on the cross appeal (see 22 NYCRR 1250.9[f][1][iv]), shall be served and filed on or before that date.

LEVENTHAL, J.P., SGROI, CONNOLLY and CHRISTOPHER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court