Appellate Division: Second Judicial Department

M259079

E/sl

JOHN M. LEVENTHAL, J.P.

SYLVIA O. HINDS-RADIX

FRANCESCA E. CONNOLLY

VALERIE BRATHWAITE NELSON, JJ.

2016-09499 Deutsche Bank National Trust Company, etc., respondent, v Gerald Martyn Upright, Jr., appellant, et al., defendant. (Index No. 5551/10)

DECISION & ORDER ON MOTION

Motion by the appellant to recall and vacate so much of a decision and order on motion of this Court dated October 31, 2018, as dismissed an appeal from an order of the Supreme Court, Westchester County, dated August 26, 2016, on the ground that the right of direct appeal therefrom terminated upon entry of a judgment of the same court dated August 1, 2018, in effect, pursuant to CPLR 5520(c) to deem the notice of appeal from the order to be a premature notice of appeal from the judgment to the extent that the judgment brings the order up for review and, in effect, to deem the record and briefs which were filed in connection with the appeal from the order to be filed in connection with the appeal from the judgment.

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

ORDERED that the motion is granted, so much of a decision and order on motion of this Court dated October 31, 2018, as dismissed the appeal from the order dated August 26, 2016, is recalled and vacated, the notice of appeal from the order is deemed to be a premature notice of appeal from the judgment to the extent that the judgment brings the order up for review (see CPLR 5520[c]), the record and briefs which were filed in connection with the appeal from the order are deemed to be filed in connection with the appeal from the judgment, and on or before January 31, 2019, the appellant shall serve and file a supplemental record containing the judgment dated August 1, 2018.

LEVENTHAL, J.P., HINDS-RADIX, CONNOLLY and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court