Appellate Division: Second Judicial Department

M262259

E/mm

ALAN D. SCHEINKMAN, P.J.

JEFFREY A. COHEN

JOSEPH J. MALTESE

HECTOR D. LASALLE, JJ.

2018-05921 Brian Healey, et al., appellants, v Ean Holdings, LLC, et al., respondents (and other titles). (Index No. 151162/15)

DECISION & ORDER ON MOTION

Motion by the appellants to strike the respondents' joint appendix and briefs on an appeal from an order of the Supreme Court, Richmond County, dated April 23, 2018, on the ground that they contain or refer to matter dehors the record, to direct the respondents to serve and file replacement briefs that do not refer to matter dehors the record, and to extend the time to serve and file a reply brief in response to the respondents' replacement briefs. Cross motion by the respondents Ean Holdings, LLC, and ELRAC, LLC, to enlarge the record to include the deposition transcript of Michael Sheehan. Separate cross motion by the respondent John Barbaria to enlarge the record to include the deposition transcript of Michael Sheehan or, in the alternative, to strike stated portions of the appellants' brief on the ground that they refer to matter dehors the record.

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 cross motion by the respondents Ean Holdings, LLC, and ELRAC, LLC, to enlarge the record and the branch of separate cross motion by the respondent John Barbaria which is to enlarge the record are denied; and it is further,

ORDERED that the branch of separate cross motion by the respondent John Barbaria which is to strike stated portions of the appellants' brief is granted to the extent that on or before May 20, 2019, the appellants shall remove the last sentence of footnote 1, on page 14, and file a replacement digital copy of the brief that does not contain the stricken material, and this cross motion is otherwise denied; and it is further,

ORDERED that the motion is granted, the respondents' joint appendix and briefs are stricken, on or before June 10, 2019, the respondents shall serve and file replacement briefs that do not refer to the deposition transcript of Michael Sheehan and do not contain any substantive changes from the briefs previously filed, the appellants' reply brief is stricken, and on or before June 27, 2019, the appellants shall serve and file a replacement reply brief that does not refer to the deposition transcript of Michael Sheehan.

SCHEINKMAN, P.J., COHEN, MALTESE and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court