Appellate Division: Second Judicial Department

M275337

E/sl

LEONARD B. AUSTIN, J.P.

BETSY BARROS

FRANCESCA E. CONNOLLY

ANGELA G. IANNACCI, JJ.

2020-01930, 2020-01931, 2020-01932 2021-00610 Lauren A. Katz, appellant, v Joseph DePaola III, respondent. (Index No. 37264/2019)

DECISION & ORDER ON MOTION

Appeals from three orders of the Supreme Court, Rockland County, dated February 4, 2020, February 7, 2020, and February 11, 2020, respectively, and the denial of an application to sign an order to show cause of the same court which occurred in January 2020. Motion by the appellant, in effect, to enlarge the record to include certain materials or, in the alternative, for the Court to take judicial notice of those materials. Cross motion by the respondent to dismiss the appeals on the ground that the record is inadequate, or to dismiss the appeals from the orders dated February 4, 2020, and February 11, 2020, on the ground that no appeal lies from orders that are not the result of a motion made on notice and leave to appeal has not been granted, to dismiss the appeal from the denial of the application to sign the order to show cause which occurred in January 2020 as neither appealable as of right nor by permission, in effect, to strike the appellant's brief on the ground that it refers to matter dehors the record, and to extend the time to serve and file a brief.

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

ORDERED that the motion is denied; and it is further,

ORDERED that the branch of the cross motion which is to dismiss the appeals from the orders dated February 4, 2020, and February 11, 2020, on the ground that no appeal lies from orders that are not the result of a motion made on notice is granted, and the appeals from the orders dated February 4, 2020, and February 11, 2020, are dismissed, without costs or disbursements (see CPLR 5701); and it is further,

ORDERED that the branch of the cross motion which is to dismiss the appeal from the denial of the application to sign the order to show cause which occurred in January 2020 as neither appealable as of right nor by permission is granted and that appeal is dismissed, without costs or disbursements (see Khanal v Sheldon, 74 AD3d 894; Matter of Astoria Gas Turbine Power, LLC v Tax Commn. of City of N.Y., 14 AD3d 553; CPLR 5701); and it is further,

ORDERED that the branch of the cross motion which is to dismiss the appeals on the ground that the record is inadequate is denied as academic with respect to the appeals from the orders dated February 4, 2020, and February 11, 2020, and the denial of the application to sign the order to show cause which occurred in January 2020, and denied with respect to the appeal from the order dated February 7, 2020, on condition that on or before March 1, 2021, the appellant shall serve and file a supplemental record via NYSCEF which contains an executed copy of the order to show cause dated January 7, 2021, the respondent's opposition to the motion that resulted in the order dated February 7, 2020, and the settled transcript of the proceedings which occurred on February 4, 2021, 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 branch of the cross motion which is, in effect, to strike the appellant's brief is granted, on or before March 1, 2021, the appellant shall serve and file a replacement brief via NYSCEF which does not refer to matter dehors the record or raise any arguments regarding the appeals from the orders dated February 4, 2020, and February 11, 2020, or the denial of the application to sign the order to show cause which occurred in January 2020, and the appellant shall file an original and five hard copies of the replacement brief 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 cross 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, and on or before March 31, 2021, the respondent shall serve and file the respondent's brief via NYSCEF, and the respondent shall 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.

AUSTIN, J.P., BARROS, CONNOLLY and IANNACCI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court