Appellate Division: Second Judicial Department

M115188

E/sl

ANITA R. FLORIO, J.P.

THOMAS A. DICKERSON

PLUMMER E. LOTT

LEONARD B. AUSTIN, JJ.

2009-03661, 2009-04744 Nella Manko, appellant, v Lenox Hill Hospital, respondent. (Index No. 30972/04)

DECISION & ORDER ON MOTION

Motion by the appellant on appeals from two orders of the Supreme Court, Kings County, both dated January 22, 2009, inter alia, in effect, for leave to reargue her prior motion to waive the requirements of 22 NYCRR 670.10.2(f) regarding certification of her appendix filed in connection with the appeal pending under Appellate Division Docket No. 2009-03661, which was granted in a decision and order on motion of this Court dated September 8, 2010, on condition that she remove certain material from the copies of the appendix filed with the Clerk of the Court, or serve and file a replacement appendix that did not contain that material, to strike the respondent's brief filed in connection with the appeal pending under Appellate Division Docket No. 2009-03661 on the ground that it refers to matter dehors the record, "for leave to proceed in forma pauperis," and for the assignment of counsel. Separate motion by the respondent, in effect, to adjourn the return date of the appellant's motion so that it may file opposition to the motion, and to extend its time to comply with stated portions of the decision and order on motion of this Court dated September 8, 2010.

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

ORDERED that the branch of the respondent's motion which is to adjourn the return date of the appellant's motion is granted, and the respondent's opposition papers are accepted for filing; and it is further,

ORDERED that the branch of the appellant's motion which is, in effect, for leave to reargue her prior motion to waive the requirements of 22 NYCRR 670.10.2(f) regarding certification of her appendix filed in connection with the appeal pending under Appellate Division Docket No. 2009-03661, which was granted in a decision and order on motion of this Court dated September 8, 2010, on condition that she remove certain material from the copies of the appendix filed with the Clerk of the Court, or serve and file a replacement appendix that did not contain that material, is granted to the extent that the decision and order on motion of this Court dated September 8, 2010, is amended by deleting from the second decretal paragraph thereof the words "on condition that on or before October 8, 2010, the appellant remove pages 227 through 234, 237 through 246, 254 through 259, 394 through 395, 506 through 509, and 519 through 524 from the copies of the appellant's appendix filed with the Clerk of the Court filed in connection with the appeal [pending] under Appellate Division Docket No. 2009- 03661 or serve and file a replacement appendix that does not contain that material," and substituting therefor the words "on condition that on or before February 23, 2011, the appellant remove pages 227 through 234, 394 through 395, 506 through 509, and 519 through 524 from the copies of the appellant's appendix filed with the Clerk of the Court filed in connection with the appeal pending under Appellate Division Docket No. 2009-03661 or serve and file a replacement appendix that does not contain that material"; and it is further,

ORDERED that the branch of the appellant's motion which is to strike the respondent's brief filed in connection with the appeal pending under Appellate Division Docket No. 2009-03661 is granted to the extent that on or before March 9, 2011, the respondent shall serve and file a replacement brief that does not contain the material in the original brief beginning with the second full paragraph on page 4 through the end of the quoted material on page 7, and the material contained in the section entitled "Relevant Procedural History" beginning on page 10 and ending on page 19; and it is further,

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

ORDERED that the branch of the respondent's motion which is to extend its time to comply with stated portions of the decision and order on motion of this Court dated September 8, 2010, is granted, and on or before February 23, 2011, the respondent shall remove pages RA1 through RA 64 from the copies of the respondent's appendix filed with the Clerk of the Court in connection with the appeal pending under Appellate Division Docket No. 2009-04744 or serve and file a replacement appendix that does not contain that material, and shall serve and file a replacement brief in connection with that appeal which does not refer to the stricken material.

FLORIO, J.P., DICKERSON, LOTT and AUSTIN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court