Appellate Division: Second Judicial Department

M267897

E/sl

CHERYL E. CHAMBERS, J.P.

LEONARD B. AUSTIN

ROBERT J. MILLER

LINDA CHRISTOPHER, JJ.

2018-08911 Wells Fargo Bank, respondent, v Victor Savory, appellant, et al., defendants. (Index No. 505512/15)

DECISION & ORDER ON MOTION

Motion by the respondent to dismiss an appeal from an order of the Supreme Court, Kings County, dated May 12, 2016, on the ground that the record on appeal is inadequate and contains matter dehors the record, or, in the alternative, to extend the time to serve and file a brief. Separate motion by the appellant, inter alia, in effect, for leave to serve and file a replacement brief. By order to show cause dated October 10, 2019, the parties to the appeal were directed to show cause before this Court why an order should or should not be made and entered dismissing the appeal on the ground that the right of direct appeal from the order dated May 12, 2016, terminated upon entry in the above-entitled action of a judgment of the Supreme Court, Kings County, dated November 15, 2017.

Now, upon the order to show cause and the papers filed in response thereto, and upon the papers filed in support of the motions and the papers filed in opposition thereto, it is

ORDERED that on the Court's own motion, the notice of appeal from the order dated May 12, 2016, is deemed to be a notice of appeal from the judgment (see CPLR 5512[a]); and it is further,

ORDERED that the motion to dismiss the appeal is denied; and it is further,

ORDERED that the branch of the respondent's motion which is to dismiss the appeal is denied on condition that on or before January 3, 2020, the appellant serve and file a replacement record which contains the judgment and which does not contain any other motion papers except the motion papers filed in the Supreme Court, Kings County, in connection with the motion that was determined by the order of that court dated May 12, 2016; 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 February 3, 2020, and the respondent's brief shall be served and filed on or before that date; and it is further,

ORDERED that the appellant's motion is denied.

CHAMBERS, J.P., AUSTIN, MILLER and CHRISTOPHER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court