Appellate Division: Second Judicial Department

M260039

E/sl

MARK C. DILLON, J.P.

JOHN M. LEVENTHAL

SYLVIA O. HINDS-RADIX

COLLEEN D. DUFFY, JJ.

2017-07166 Deutsche Bank National Trust Company, etc., respondent, v Verna Ezeji, appellant, et al., defendant. (Index No. 8474/11)

DECISION & ORDER ON MOTION

Motion by the respondent to direct the appellant to serve and file a supplemental record containing certain material on an appeal from an order of the Supreme Court, Nassau County, dated April 26, 2017, and to extend the time to serve and file a brief. By order to show cause dated December 24, 2018, the parties to the appeal were directed to show cause before this Court why an order should or should not be made and entered dismissing the appeal on the ground that the right of direct appeal from the order dated April 26, 2017, terminated upon entry of a judgment of the Supreme Court, Nassau County, entered August 13, 2018, in the above-entitled action and the respondent's motion was held in abeyance in the interim. Separate motion by the appellant 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 up for review the order, to deem the record and the briefs filed in connection with the appeal from the order to be filed in connection with the appeal from the judgment, and for leave to serve and file a supplemental record containing the judgment. Separate motion by the appellant to stay enforcement of the judgment and all proceedings in the above-entitled action pending hearing and determination of the appeal. Application by the appellant pursuant to 22 NYCRR 670.8(d)(2) to extend the time to serve and file a reply brief.

Now, upon the order to show cause and the papers filed in response thereto, upon the papers filed in support of the respondent's motion and no papers having been filed in opposition or in relation thereto, upon the papers filed in support of the appellant's motion, inter alia, pursuant to CPLR 5520(c) and no papers having been filed in opposition or in relation thereto, upon the papers filed in support of the appellant's motion for a stay and the papers filed in opposition thereto, and upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it is

ORDERED that the motion to dismiss the appeal is denied; and it is further,

ORDERED that the branch of the respondent's motion which is to direct the appellant to serve and file a supplemental record and the appellant's motion 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 up for review the order, to deem the record and the briefs filed in connection with the appeal from the order to be filed in connection with the appeal from the judgment, and for leave to serve and file a supplemental record containing the judgment are granted, and on or before March 11, 2019, the appellant shall serve and file a supplemental record containing the material annexed to the respondent's motion papers as Exhibit 2 and the judgment; and it is further,

ORDERED that the respondent's motion is otherwise denied as unnecessary as the respondent timely filed a brief; and it is further,

ORDERED that the appellant's motion for a stay is granted and enforcement of the judgment and all proceedings in the above-entitled action are stayed pending hearing and determination of the appeal; and it is further,

ORDERED that the application is granted, the appellant's time to serve and file a reply brief is extended until March 11, 2019, and the reply brief shall be served and filed on or before that date; and it is further,

ORDERED that no further extension of time shall be granted.

DILLON, J.P., LEVENTHAL, HINDS-RADIX and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court