Appellate Division: Second Judicial Department

M277831

E/sl

WILLIAM F. MASTRO, J.P.

ROBERT J. MILLER

BETSY BARROS

LINDA CHRISTOPHER, JJ.

2019-08578 Richard Caracciolo, plaintiff-respondent, v SHS Ralph, LLC, defendant third-party plaintiff-respondent, Dina Realty LLC, defendant- respondent, Wilcox Development Corp., appellant; ThyssenKrupp Elevator Corporation, third-party defendant-respondent. (Index No. 512132/2016)

DECISION & ORDER ON MOTION

2019-08580

Richard Caracciolo, plaintiff-respondent,

v SHS Ralph, LLC, defendant third-party

plaintiff-respondent-appellant, Dina Realty

LLC, et al., defendants-respondents;

ThyssenKrupp Elevator Corporation,

third-party defendant-appellant-respondent.

(Index No. 512132/2016)

2021-02214

Richard Caracciolo, plaintiff-respondent,

v SHS Ralph, LLC, defendant third-party

plaintiff-appellant, Dina Realty LLC, et al.,

defendants-respondents; ThyssenKrupp Elevator

Corporation, third-party defendant-respondent.

(Index No. 512132/2016)

Appeals from three orders of the Supreme Court, Kings County, two dated June 11, 2019, and one dated December 17, 2020, and cross appeal from the order dated June 11, 2019, under Appellate Division Docket No. 2019-08580. Motion by SHS Ralph, LLC, to consolidate the appeals and cross appeal, for leave to serve and file a supplemental joint record containing the papers constituting the record in connection with the appeal from the order dated December 17, 2020, and for leave to file a replacement brief in connection with the consolidated appeals that also contains its points of argument concerning the appeal from the order dated December 17, 2020, or, in the alternative, to calendar the appeals and cross appeal together. Cross motion by ThyssenKrupp Elevator Corporation to dismiss the cross appeal from the order dated June 11, 2019, under Appellate Division Docket No. 2019-08580, for failure of SHS Ralph, LLC, to pay its share of the joint record, and to dismiss the appeal from the order dated December 17, 2020, on the ground that no appeal lies from an order denying leave to reargue. Application by ThyssenKrupp Elevator Corporation pursuant to 22 NYCRR 1250.9(g)(1) to extend the time to serve and file a reply brief in connection with the appeal and cross appeal from the order dated June 11, 2019, under Appellate Division Docket No. 2019-08580.

Upon the papers filed in support of the motion and the cross motion, and the papers filed in opposition thereto, and upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it is

ORDERED that the branch of the cross motion which is to dismiss the cross appeal from the order dated June 11, 2019, is denied on condition that on or before July 26, 2021, SHS Ralph, LLC, pay its share of the joint record (see 22 NYCRR 1250.9[f][1][a]) and file proof of payment with the Clerk of the Court via email at [email protected]; and it is further,

ORDERED that the branch of the cross motion which is to dismiss the appeal from the order dated December 17, 2020, is held in abeyance and referred to the panel of Justices hearing that appeal for determination upon the argument or submission thereof; and it is further,

ORDERED that the branch of the motion which is to calendar the appeals and cross appeal together is granted and the appeals and cross appeal 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 application is granted, and on or before August 25, 2021, ThyssenKrupp Elevator Corporation shall serve and file the reply brief in connection with the appeal and cross appeal from the order dated June 11, 2019, under Appellate Division Docket No. 2019-08580, via NYSCEF, if applicable, or, if NYSCEF is not mandated, serve the reply brief and upload a digital copy of the reply brief, with proof of service thereof, through the digital portal on this Court's website.

MASTRO, J.P., MILLER, BARROS and CHRISTOPHER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court