Appellate Division: Second Judicial Department

M276365

E/sl

MARK C. DILLON, J.P.

SYLVIA O. HINDS-RADIX

COLLEEN D. DUFFY

PAUL WOOTEN, JJ.

2019-13849 Deutsche Bank Trust Company Americas, etc., respondent, v David J. Smith, appellant, et al., defendants. (Index No. 20774/2008)

DECISION & ORDER ON MOTION

2020-08919

Deutsche Bank Trust Company Americas,

etc., respondent, v David J. Smith, appellant,

et al., defendants.

(Index No. 20774/2008)

Appeals from two orders of the Supreme Court, Suffolk County, dated September 26, 2018, and September 2, 2020, respectively. Motion by the respondent to dismiss the appeal from the order dated September 26, 2018, as superseded by the order dated September 2, 2020, or, in the alternative, to consolidate the appeals, to enlarge the record to include certain materials, and for leave to serve and file a supplemental respondent's brief. Cross motion by the appellant to strike the respondent's brief filed in connection with the appeal from the order dated September 26, 2018, on the ground that it refers to matter dehors the record, and to extend the time to serve and file a reply brief in connection with that appeal.

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 branch of the motion which is to dismiss the appeal from the order dated September 26, 2018, is held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof; and it is further,

ORDERED that the branch of the motion which is to consolidate the appeals is denied; and it is further,

ORDERED that on the Court's own motion, the appeals will be calendared together and will be argued or submitted on the same date; and it is further,

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

ORDERED that the branch of the cross motion which is to strike the respondent's brief filed in connection with the order dated September 26, 2018, is granted, on or before April 28, 2021, the respondent shall serve a replacement brief which does not refer to the order dated September 2, 2020, or matter dehors the record, and upload a digital copy of the replacement brief, with proof of service thereof, through the digital portal on this Court's website, and the respondent 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 reply brief is granted, on or before May 13, 2021, the appellant shall serve the reply brief and upload digital copies of the reply brief, 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 reply brief in accordance with any applicable administrative order or other order to be issued by the Court.

DILLON, J.P., HINDS-RADIX, DUFFY and WOOTEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court