Appellate Division: Second Judicial Department

M278569

E/mb

LEONARD B. AUSTIN, J.P.

LINDA CHRISTOPHER

LARA J. GENOVESI

WILLIAM G. FORD, JJ.

2020-02894 Peter Muller, appellant, v David I. Goldstein, et al., respondents. (Index No. 1748/2016)

DECISION & ORDER ON MOTION

2020-07885

Peter Muller, appellant,

v David I. Goldstein, et al., respondents.

(Index No. 1748/2016)

2021-04467

Peter Muller, appellant,

v David I. Goldstein, et al., respondents.

(Index No. 1748/2016)

Appeals from three orders of the Supreme Court, Rockland County, two dated December 12, 2019, and March 11, 2020, respectively, and one entered June 17, 2021. The appeal from the order dated December 12, 2019, has been deemed dismissed pursuant to 22 NYCRR 1250.10(a). Motion by the appellant, in effect, pursuant to 22 NYCRR 1250.10(c) to vacate the dismissal of the appeal from the order dated December 12, 2019, to extend the time to perfect that appeal, to consolidate that appeal with the appeal from the order dated March 11, 2020, and to stay all proceedings in the above-entitled action, pending hearing and determination of the appeals. Separate motion by the appellant to consolidate the three appeals. Cross motion by the respondents to dismiss the appeal from the order dated March 11, 2020, for failure to timely perfect, on the ground that it has been rendered academic, and on the ground that the dismissal of the prior appeal for failure to timely perfect precludes consideration of the issues to be raised on the appeal from the order dated March 11, 2020, pursuant to Bray v Cox (38 NY2d 350).

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

ORDERED that on the Court's own motion, the appeal from the order dated March 11, 2020, is dismissed, without costs or disbursements, on the ground that no appeal lies from an ordered entered upon the default of the appealing party (see CPLR 5511); and it is further,

ORDERED that the branches of the motion which are, in effect, pursuant to 22 NYCRR 1250.10(c) to vacate the dismissal of the appeal from the order dated December 12, 2019, and to extend the time to perfect that appeal are granted, the dismissal of the appeal pursuant to 22 NYCRR 1250.10(a) is vacated, and on or before October 5, 2021, the appellant shall serve and file the record or appendix and the appellant's brief via NYSCEF, if applicable, or, if NYSCEF is not mandated, serve the record or appendix and the appellant's brief and upload digital copies of the record or appendix and the appellant's brief, with proof of service thereof, through the digital portal on this Court's website; and it is further,

ORDERED that no further extension of time shall be granted; and it is further,

ORDERED that the branches of the motions which are to consolidate the appeal from the order dated December 12, 2019, with the appeal from the order dated March 11, 2020, are denied as academic; and it is further,

ORDERED that the branch of the motion which is to consolidate the appeal from the order dated December 12, 2019, with the appeal from the order entered June 17, 2021, is denied as unnecessary as those appeals may be consolidated as of right (see 22 NYCRR 1250.9[f][3]); and it is further,

ORDERED that the branch of the motion which is to stay all proceedings in the above-entitled action is denied; and it is further,

ORDERED that the cross motion is denied as academic.

AUSTIN, J.P., CHRISTOPHER, GENOVESI and FORD, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court