U.S. Bank National Association v Hammer
Motion No: 2018-05130
Slip Opinion No: 2019 NY Slip Op 66169(U)
Decided on March 22, 2019
Appellate Division, Second Department, Motion Decision
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This motion is uncorrected and is not subject to publication in the Official Reports.


Supreme Court of the State of New York

Appellate Division: Second Judicial Department

M261294

F/mm

LEONARD B. AUSTIN, J.P.

BETSY BARROS

FRANCESCA E. CONNOLLY

ANGELA G. IANNACCI, JJ.

2018-05130

U.S. Bank National Association, etc.,

respondent, v Barbara Hammer, appellant,

et al., defendants.

(Index No. 65859/15)

DECISION & ORDER ON MOTION

On the Court's own motion, it is

ORDERED that the decision and order on motion of this Court dated January 31, 2019, in the above-entitled case is recalled and vacated, and the following decision and order on motion is substituted therefor:

Motion by the appellant to deem a notice of appeal from an order of the Supreme Court, Westchester County, dated March 27, 2018, to be a premature notice of appeal from a judgment of the same court entered October 22, 2018, to the extent that the judgment brings the order up for review, 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, and for leave to serve and file a supplemental record containing the judgment. Separate motion by the respondent to dismiss the appeal on the ground that the right of direct appeal from the order terminated upon entry of the judgment, or, in the alternative, to extend the time to serve and file a brief.

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

ORDERED that the appellant's motion is granted, 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 March 4, 2019, the appellant shall serve and file a supplemental record containing the judgment; and it is further,

ORDERED that the branch of the respondent's motion which is to dismiss the appeal is denied as academic; and it is further,

ORDERED that the branch of the respondent's motion which is to extend the time to serve and file a brief is granted, the respondent's time to serve and file a brief is extended until April 3, 2019, and the respondent's brief shall be served and filed on or before that date.

AUSTIN, J.P., BARROS, CONNOLLY and IANNACCI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court