Appellate Division: Second Judicial Department

M271386

E/sl

MARK C. DILLON, J.P.

JOHN M. LEVENTHAL

JEFFREY A. COHEN

SYLVIA O. HINDS-RADIX, JJ.

2019-06744, 2019-08074 Thomas Auriemma, appellant, v Brooklyn Hospital Center, defendant third-party plaintiff-respondent, et al., defendant; KCI USA, Inc., et al., third-party defendants- respondents. (Index No. 505096/2014)

DECISION & ORDER ON MOTION

Appeal from an order of the Supreme Court, Kings County, dated April 18, 2019, and appeal from a judgment of the same court entered May 15, 2019, which was deemed dismissed pursuant to 22 NYCRR 1250.10(a). Motion by respondent to dismiss the appeal from the order on the ground that the right of direct appeal from the order terminated upon entry of the judgment in the above-entitled action. Cross motion by the appellant, in effect, pursuant to 22 NYCRR 1250.10(c) to vacate the dismissal of the appeal from the judgment, to extend the time to perfect the appeal from the judgment, to consolidate the appeals, and to deem the record and the appellant's brief filed in connection with the appeal from the order to also be filed in connection with the appeal from the judgment.

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

ORDERED that the cross motion is granted, the dismissal of the appeal from the judgment pursuant to 22 NYCRR 1250.10(a) is vacated, the appeals are consolidated, the record and the appellant's brief filed in connection with the appeal from the order are deemed also be filed in connection with the appeal from the judgment, and on or before July 20, 2020, the appellant shall upload digital copies of a replacement record and a replacement appellant's brief with corrected covers that contain Appellate Division Docket No. 2019-08074 as well as Appellate Division Docket No. 2019-06744, submit corrected covers for the copies of the record and the appellant's brief that were filed with the Clerk of the Court, serve a supplemental record that contains the judgment and the notice of appeal from the judgment, and upload a digital copy of the supplemental record, with proof of service thereof, through the digital portal on this Court's website, and the appellant shall file an original and five hard copies of the supplemental record in accordance with any applicable administrative order or other order to be issued by the Court; and it is further,

ORDERED that the motion is held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof.

DILLON, J.P., LEVENTHAL, COHEN and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court