Appellate Division: Second Judicial Department

M269053

kbp/

RUTH C. BALKIN, J.P.

JEFFREY A. COHEN

BETSY BARROS

ANGELA G. IANNACCI, JJ.

2018-06645, 2018-06646 Citimortgage, Inc., etc., respondent, v Joseph Leitman, et al., appellants, et al., defendants. (Index No. 31552/10)

DECISION & ORDER ON MOTION

2020-00308

Citimortgage, Inc., etc., respondent,

v Joseph Leitman, et al., appellants,

et al., defendants.

(Index No. 31552/10)

Motion by the respondent on appeals from a decision of the Supreme Court, Kings County, dated February 2, 2018, an order of the same court dated March 11, 2018, and an order and judgment (one paper) of the same court entered September 13, 2019, to dismiss the appeals from the decision and the order on the ground that the right of direct appeal therefrom terminated upon entry in the above-entitled action of the order and judgment or, in the alternative, to deem the notice of appeal from the decision and the order to be a premature notice of appeal from the order and judgment, to deem the appellants' appendix and brief, the respondent's brief, and the appellants' reply brief filed in connection with the appeals from the decision and the order to be filed in connection with the appeal from the order and judgment, and to direct the service and filing of a supplemental appendix containing the judgment and the parties' posttrial memoranda of law.

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

ORDERED that on the Court's own motion, the appeal from the decision is dismissed, without costs or disbursements, on the ground that no appeal lies from a decision (see Schicchi v J.A. Green Constr. Co., 100 AD2d 509); and it is further,

ORDERED that on the Court's own motion, the appeal from the order is dismissed, without costs or disbursements, on the ground that no appeal lies as of right from an order that is not the result of a motion made on notice (see CPLR 5701), and leave to appeal has not been granted; and it is further,

ORDERED that the branch of the motion which is to deem the appellants' appendix and brief, the respondent's brief, and the appellants' reply brief filed in connection with the appeals from the decision and the order to be filed in connection with the appeal from the order and judgment is granted, the appellants' appendix and brief, the respondent's brief, the appellants' reply brief, and the original papers filed in connection with the appeals from the decision and the order are deemed to be filed in connection with the appeal from the order and judgment, and on or before February 26, 2020, the parties shall correct the covers of the copies of the appellants' appendix and brief, the respondent's brief, and the appellants' reply brief filed with the Clerk of the Court to delete Appellate Division Docket Nos. 2018-06645 and 2018-06646, and add Appellate Division Docket No. 2020-00308, the appellants shall remove the notice of appeal from the decision and the order from the copies of the appellants' appendix and brief filed with the Clerk of the Court, and the parties shall file digital copies of the corrected appellants' appendix and brief, the respondent's brief, and the appellants' reply brief; and it is further,

ORDERED that the branch of the motion which is to direct the service and filing of a supplemental appendix is granted and on or before February 26, 2020, the appellants shall serve and file a supplemental appendix containing the order and judgment, the notice of appeal from the order and judgment, and the parties' posttrial memoranda of law; and it is further,

ORDERED that the motion is otherwise denied.

BALKIN, J.P., COHEN, BARROS and IANNACCI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court