Appellate Division: Second Judicial Department

M276711

E/sl

REINALDO E. RIVERA, J.P.

SYLVIA O. HINDS-RADIX

COLLEEN D. DUFFY

LINDA CHRISTOPHER, JJ.

2018-14715, 2019-06894 U.S. Bank National Association, etc., appellant, v Taunya McLean, et al., respondents, et al., defendants. (Index No. 505172/2016)

DECISION & ORDER ON MOTION

2019-08148

U.S. Bank National Association, etc., appellant,

v Taunya McLean, et al., respondents,

et al., defendants.

(Index No. 505172/2016)

Appeals from a decision of the Supreme Court, Kings County, dated October 29, 2018, an order of the same court dated May 1, 2019, and a judgment of the same court dated June 12, 2019. Motion by the respondents to dismiss the appeals from the decision and the order on the grounds that no appeal lies from a decision or from an order that denies leave to reargue or renew a decision. Cross motion by the appellant pursuant to CPLR 5520(c) to deem the notices of appeal from the decision and the order to be premature notices of appeal from the judgment and to deem the record and briefs filed in connection with the appeals from the decision and the order to also be filed in connection with the appeal from the judgment or, in the alternative, for leave to appeal to this Court from the decision and the order and to consolidate the appeals from the decision and the order with the appeal from the judgment and/or to calendar the appeals from the decision and the order with the appeal from the judgment. Separate motion by the respondents to dismiss the appeal from the judgment on the ground that the record on that appeal is inadequate or, in the alternative, to direct the appellant to serve and file a supplemental record and a replacement brief in connection with the appeal from the judgment and to extend the time to serve and file a brief in connection with the appeal from the judgment.

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

ORDERED that the motion to dismiss the appeals from the decision and the order is granted and those appeals are dismissed, without costs or disbursements (see Schicchi v J.A. Green Constr. Co., 100 AD2d 509; DeFalco v JRS Confectionary, Inc., 118 AD2d 752); and it is further,

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

ORDERED that the branch of the motion which is to dismiss the appeal from the judgment is denied; and it is further,

ORDERED that the branch of the motion which is to direct the appellant to serve and file a supplemental record and a replacement brief in connection with the appeal from the judgment is granted and on or before May 19, 2021, the appellant shall serve a supplemental record which contains the papers filed in connection with the underlying summary judgment motion and cross motion for summary judgment and a replacement brief that contains appropriate citations to the material in the supplemental record, and upload digital copies of the supplemental record and the replacement appellant's 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 supplemental record and the replacement appellant's 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 motion which is to extend the time to serve and file a brief in connection with the appeal from the judgment is denied as premature.

RIVERA, J.P., HINDS-RADIX, DUFFY and CHRISTOPHER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court