Appellate Division: Second Judicial Department

M258560

E/afa

REINALDO E. RIVERA, J.P.

JEFFREY A. COHEN

SYLVIA O. HINDS-RADIX

JOSEPH J. MALTESE, JJ.

2018-05811 Sonia Merchan Zamora, respondent-appellant, v David Caccavo, LLC, appellant-respondent, E & Z Food Corp., respondent, et al., defendants (Index No. 701636/15)

DECISION & ORDER ON MOTION

2018-09668

Sonia Merchan Zamora, plaintiff,

v David Caccavo, LLC, et al., defendants,

E & Z Food Corp., respondent, New York

City Transit Authority, appellant.

(Index No. 701636/15)

2018-10272

Sonia Merchan Zamora, plaintiff-respondent,

v David Caccavo, LLC, appellant, New York

City Transit Authority, defendant-respondent,

et al., defendant; E & Z Food Corp., nonparty-

respondent.

(Index No. 701636/15)

Motion by E & Z Food Corp. on an appeal and a cross appeal from an order of the Supreme Court, Queens County, entered May 1, 2018, an appeal from a judgment of the same court entered June 6, 2018, and an appeal from an order of the same court entered July 16, 2018, inter alia, to dismiss the appeal from the order entered May 1, 2018, on the ground that order was entered upon the default of David Caccavo, LLC, and on the ground that the right of direct appeal from the order terminated upon entry of the judgment, and to dismiss the appeal from the order entered July 16, 2018, on the ground that no appeal lies from an order denying reargument. Separate motion by David Caccavo, LLC, to stay the trial in the above-entitled action pending hearing and determination of the appeal from the order entered July 16, 2018. Application by E & Z Food Corp. pursuant to 22 NYCRR 1250.9(g)(1) to extend the time to serve and file a brief in connection with the appeal from the order entered July 16, 2018. Separate application by David Caccavo, LLC, to withdraw the appeal from so much of the order entered July 16, 2018, as denied reargument.

Upon the papers filed in support of the motion by E & Z Food Corp. and the papers filed in opposition and in relation thereto, upon the papers filed in support of the motion by David Caccavo, LLC, and the papers filed in opposition thereto, and upon the papers filed in support of the applications and no papers having been filed in opposition or in relation thereto, it is

ORDERED that on the Court's own motion, the notice of appeal and notice of cross appeal from the order entered May 1, 2018, are deemed also to be a notice of appeal and notice of cross appeal from the judgment (see CPLR 5501[c]), the joint record and the brief of David Caccavo, LLC, and the brief of Sonia Merchan Zamora filed in connection with the appeal and cross appeal from the order entered May 1, 2018, are deemed also to be filed in connection with the appeal from the judgment, and on or before January 16, 2019, (1) David Caccavo, LLC, shall correct the covers of the joint record and its brief to reflect the parties' status and to add Appellate Division Docket No. 2018-09668, file a replacement digital copy of the joint record and the brief of David Caccavo, LLC, which contains the corrections to the covers, and serve and file a supplemental joint record containing the notice of appeal of New York City Transit Authority from the judgment, and (2) Sonia Merchan Zamora shall correct the cover of her brief to reflect the parties' status and to add Appellate Division Docket No. 2018-09668, and file a replacement digital copy of the brief, which contains the corrections to the cover; and it is further,

ORDERED that New York City Transit Authority shall serve and file a brief in connection with the appeals and cross appeals from the order entered May 1, 2018, and the judgment, including its points of argument on its appeal, on or before February 15, 2019; and it is further,

ORDERED that E & Z Food Corp. shall serve and file a brief in connection with the appeals and cross appeals from the order entered May 1, 2018, and the judgment on or before March 18, 2019; and it is further,

ORDERED that the branch of the motion by E & Z Food Corp. which is to dismiss the appeal from the order entered May 1, 2018, on the ground that the right of direct appeal from that order terminated upon entry of the judgment is held in abeyance and referred to the panel of Justices hearing the appeals and cross appeals from the order entered May 1, 2018, and the judgment for determination upon the argument or submission thereof; and it is further,

ORDERED that the application by David Caccavo, LLC, is granted and the appeal from so much of the order entered July 16, 2018, as denied reargument is deemed withdrawn; and it is further,

ORDERED that the branch of the motion by E & Z Food Corp. which is to dismiss the appeal from so much of the order entered July 16, 2018, as denied reargument is denied as academic; and it is further,

ORDERED that the motion by E & Z Food Corp. is otherwise denied; and it is further,

ORDERED that the motion by David Caccavo, LLC, is granted and the trial in the above-entitled action is stayed pending hearing and determination of the appeal from the order entered July 16, 2018; and it is further,

ORDERED that the application by E & Z Food Corp. is granted, the applicant's time to serve and file a brief in connection with the appeal from the order entered July 16, 2018, is extended until January 25, 2019, and the brief shall be served and filed on or before that date.

RIVERA, J.P., COHEN, HINDS-RADIX and MALTESE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court