Appellate Division: Second Judicial Department

M261798

E/mm

WILLIAM F. MASTRO, J.P.

REINALDO E. RIVERA

RUTH C. BALKIN

FRANCESCA E. CONNOLLY, JJ.

2017-07779, 2017-10437 Dorchester, LLC, respondent, v Herzka Insurance Agency, Inc., appellant. (Index No. 607478/16)

DECISION & ORDER ON MOTION

2018-04142

Dorchester, LLC, respondent,

v Herzka Insurance Agency, Inc., appellant.

(Index No. 607478/16)

Motion by the respondent, inter alia, to strike stated portions of the appellant's brief on an appeal from an order of the Supreme Court, Nassau County, entered March 2, 2018, on the ground that they refer to matter dehors the record, to extend the time to serve and file a brief in connection with that appeal, and to calendar that appeal with appeals from two orders of the same court dated June 26, 2017, and September 6, 2017, respectively. Cross motion by the appellant to stay the trial in the above-entitled action, pending hearing and determination of the appeal from the order entered March 2, 2018.

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

ORDERED that the branch of the motion which is to strike stated portions of the appellant's brief is granted to the extent that the following material is stricken from the appellant's brief filed in connection with the appeal from the order entered March 2, 2018:

(1) the portion of the paragraph beginning on page 2 with the words "Following the issuance" and ending on page 3 with the words "treatment of the Frias settlement funds";

(2)the footnote 1 on page 3;

(3) the last two sentences in the first paragraph on page 11, which begin with the words "That the April order" and end with the words "discovery of Mott and/or Gillespie";

(4) the last two sentences in the first paragraph on page 17, which begin with the words "Of course, the April order" and end with the words "the Supreme Court's own question"; and

(5) the fourth sentence in the second paragraph on page 24, which states, "It is noted that the April Order permitted a single question concerning tax treatment";

and it is further,

ORDERED that on or before May 13, 2019, the appellant shall delete the stricken material from the copies of the appellant's brief filed in connection with the appeal from the order entered March 2, 2018, and serve and file a replacement digital copy of that brief, or serve and file an original and five hard replacement copies and a digital replacement copy of that brief which do not contain the stricken material; and it is further,

ORDERED that the branch of the motion which is to extend the respondent's time to serve and file a brief in connection with the appeal from the order entered March 2, 2018, is granted, the respondent's time to serve and file a brief is extended until June 10, 2019, and the respondent's brief shall be served and filed on or before that date; and it is further,

ORDERED that the branch of the motion which is to calendar the appeal from the order entered March 2, 2018, together with the appeals from the orders dated June 26, 2017, and September 6, 2017, is granted and the appeals will be argued or submitted on the same date; and it is further,

ORDERED that the motion is otherwise denied; and it is further,

ORDERED that the cross motion is denied.

MASTRO, J.P., RIVERA, BALKIN and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court