Appellate Division: Second Judicial Department

M267783

E/sl

ALAN D. SCHEINKMAN, P.J.

JEFFREY A. COHEN

HECTOR D. LASALLE

FRANCESCA E. CONNOLLY, JJ.

2019-05156 US Bank National Association, etc., respondent, v Jack Esses, et al., appellants, et al., defendants. (Index No. 13335/09)

DECISION & ORDER ON MOTION

Motion by the respondent to dismiss an appeal from an order and judgment of the Supreme Court, Kings County, dated January 11, 2019, on the ground that the notice of appeal, which was timely filed, was not timely served, and on the ground that the dismissal of a prior appeal for failure to timely perfect precludes consideration of the issues to be raised on this appeal pursuant to Bray v Cox (38 NY2d 350).

Upon the papers filed in support of the motion and no papers having been filed in opposition or in relation thereto, it is

ORDERED that on the Court's own motion, the time to serve the notice of appeal that was timely filed is extended until December 16, 2019 (see CPLR 5520[a]), and the appellant shall file proof of service with the Clerk of this Court on or before that date; and it is further,

ORDERED that the branch of the motion which is to dismiss the appeal on the ground that the notice of appeal, which was timely filed, was not timely served, is denied; and it is further,

ORDERED that the branch of the motion which is to dismiss the appeal on the ground that the dismissal of a prior appeal for failure to timely perfect precludes consideration of the issues to be raised on this appeal pursuant to Bray v Cox (38 NY2d 350) is held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

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

ENTER:

Aprilanne Agostino

Clerk of the Court