| OCWEN v Jean |
| Motion No: 2018-06217 |
| Slip Opinion No: 2019 NY Slip Op 70844(U) |
| Decided on May 20, 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. |
Appellate Division: Second Judicial Department
M262850
E/mm
LEONARD B. AUSTIN, J.P.
JOHN M. LEVENTHAL
SHERI S. ROMAN
ROBERT J. MILLER, JJ.
|
2018-06217 OCWEN, plaintiff-respondent, v Phillippe Jean, defendant-respondent, et al., defendants; E 38 St Realty, Inc., nonparty- appellant; Jack Aini, nonparty-respondent. (Index No. 502888/12)
| DECISION & ORDER ON MOTION |
Motion by the plaintiff-respondent, inter alia, to dismiss an appeal from an order of the Supreme Court, Kings County, dated March 19, 2018, on the grounds that the record is inadequate, and/or that the right of direct appeal from the order terminated upon entry of a judgment of the same court also dated March 19, 2018, and/or that the nonparty-appellant is not a party to the action or, in the alternative, to extend the time to serve and file a brief. Cross motion by the nonparty-appellant, in effect, to deem the notice of appeal from the order to be a notice of appeal from the judgment.
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 dismiss the appeal on the ground that the record is inadequate is denied on condition that on or before June 17, 2019, the nonparty-appellant serves and files a replacement record that contains material omitted from the record, that is, the material which should have been located at pages 59, 60, 255, 273, 274, 326, 349, 350, 353, 354, and 363 through 368 of the record, properly paginated; and it is further,
ORDERED that the branch of the motion which is to extend the plaintiff-respondent's time to serve and file a brief is granted, the plaintiff-respondent's time to serve and file a brief is extended until July 17, 2019, and the plaintiff-respondent's brief shall be served and filed on or before that date; and it is further,
ORDERED that the cross motion is granted, the notice of appeal from the order is deemed to be a notice of appeal from the judgment (see CPLR 5512[a]), and the nonparty-appellant shall include a copy of the judgment in the replacement record, referenced above; and it is further,
ORDERED that the motion is otherwise denied.
AUSTIN, J.P., LEVENTHAL, ROMAN and MILLER, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court