Appellate Division: Second Judicial Department

M260928

E/afa

REINALDO E. RIVERA, J.P.

JEFFREY A. COHEN

HECTOR D. LASALLE

FRANCESCA E. CONNOLLY, JJ.

2017-10839, 2018-09395, 2018-12592 T. Mina Supply, Inc., appellant, et al., plaintiffs, v Clemente Bros. Contracting Corp., et al., defendants, International Fidelity Insurance Company, respondent. (Index No. 23125/11)

DECISION & ORDER ON MOTION

Motion by the respondent on appeals from two orders of the Supreme Court, Queens County, dated August 18, 2017, and May 10, 2018, respectively, and a judgment of the same court entered August 2, 2018, to dismiss the appeal from the order dated August 18, 2017, on the ground that the right of direct appeal therefrom terminated upon entry of the judgment and to dismiss the appeal from the judgment as untimely taken, or, in the alternative, to hold the appeals in abeyance pending certain proceedings in the Supreme Court, Queens County. Cross motion by the appellant, inter alia, to deem the record and briefs filed in connection with the appeal from the order dated August 18, 2017, to be filed in connection with the appeal from the judgment, and for leave to serve and file a supplemental record and brief.

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 appeal from the order May 10, 2018, is dismissed, without costs or disbursements, on the ground that the right of direct appeal therefrom terminated upon entry of the judgment (see Matter of Aho, 39 NY2d 241); the issues raised on the appeal from the order May 10, 2018, may be brought up for review and raised on the appeal from the judgment; and it is further,

ORDERED that the branch of the motion which is to dismiss the appeal from the order dated August 18, 2017, is granted and the appeal from the order from the order dated August 18, 2017, is dismissed, without costs or disbursements (see Matter of Aho, 39 NY2d 241); and it is further,

ORDERED that the branch of the motion which is to dismiss the appeal from the judgment is denied; and it is further,

ORDERED that the branches of the cross motion which are to deem the record and briefs filed in connection with the appeal from the order dated August 18, 2017, to be filed in connection with the appeal from the judgment, and for leave to serve and file a supplemental record and brief are granted, and on or before April 12, 2019, the appellant shall correct the covers of the record and the briefs filed in connection with the appeal from the order dated August 18, 2017, to reflect the proper docket number, remove the notice of appeal from the order dated August 18, 2017, from the record, and serve and file a supplemental record containing the judgment, the notice of appeal from the judgment, and any papers constituting the record on the appeal from the judgment that are not contained in the record filed in connection with the appeal from the order dated August 18, 2017; and it is further,

ORDERED that the cross motion is otherwise denied.

RIVERA, J.P., COHEN, LASALLE and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court