Appellate Division: Second Judicial Department

M272354

E/sl

RUTH C. BALKIN, J.P.

JEFFREY A. COHEN

COLLEEN D. DUFFY

BETSY BARROS, JJ.

2019-02848 Citimortgage, Inc., respondent, v Debra Mitchell, appellant, et al., defendants. (Index No. 64412/2014)

DECISION & ORDER ON MOTION

Appeal from an order of the Supreme Court, Suffolk County, dated December 12, 2018. Motion by the respondent to dismiss the appeal on the ground that the record is incomplete, 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), or, in the alternative, to extend the time to serve and file a brief. By order to show cause dated February 20, 2020, the parties were directed to show cause before this Court why an order should or should not be made and entered dismissing the above-entitled appeal on the ground that the appellant raises issues in her brief that are not properly before the Court.

Now, upon the order to show cause and the papers filed in response thereto, and upon the papers filed in support of the respondent's motion and the papers filed in opposition thereto, it is

ORDERED that the motion to dismiss the appeal on the ground that the appellant raises issues in her brief that are not properly before the Court is denied; and it is further,

ORDERED that the branch of the respondent's motion which is to dismiss the appeal on the ground that the record is incomplete is denied on condition that on or before September 11, 2020, the appellant serve and file, via NYSCEF, a supplemental record containing the exhibits admitted into evidence at the hearing on the issue of whether the respondent complied with RPAPL 1304, and 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 branch of the respondent's 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 denied; and it is further,

ORDERED that the branch of the respondent's motion which is to extend the respondent's time to serve and file a brief is granted, the respondent's time to serve and file a brief is extended, and on or before October 13, 2020, the respondent shall serve and file the respondent's brief via NYSCEF, and file an original and five hard copies of the respondent's brief in accordance with any applicable administrative order or other order to be issued by the Court.

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

ENTER:

Aprilanne Agostino

Clerk of the Court