Appellate Division: Second Judicial Department

M282023

AFA/

FRANCESCA E. CONNOLLY, J.P.

REINALDO E. RIVERA

ROBERT J. MILLER

PAUL WOOTEN, JJ.

2020-09175, 2020-09200 Diane Petrunti, respondent, v Anthony Petrunti, appellant. (Index No. 7637/2016)

DECISION & ORDER ON MOTION

Appeals from an order of the Supreme Court, Suffolk County, dated November 30, 2020, and an amended order of the same court dated December 9, 2020. By order to show cause dated December 29, 2021, the parties to the appeals were directed to show cause before this Court why an order should or should not be made and entered dismissing the appeals on the ground that the right of direct appeal from the orders terminated upon entry in the above-entitled action of a judgment of the Supreme Court, Suffolk County, entered June 8, 2021 (see Matter of Aho, 39 NY2d 241). Motion by the respondent, in effect, to strike stated portions of the appellant's brief on the ground that they raise issues that are not properly part of the appeals, to dismiss stated portions of the appeals, for leave to serve and file an appendix, and to extend the time to serve and file a brief.

Now, upon the order to show cause and the papers filed in response thereto, and upon the papers filed in support of the respondent's motion and the papers filed in opposition thereto, it is

ORDERED that on the Court's own motion, the notices of appeal from the order and the amended order are deemed to be premature notices of appeal from the judgment (see CPLR 5520[c]), the appendix and appellant's brief filed in connection with the order and the amended order are deemed to be filed in connection with the judgment, the appeal from the judgment will be prosecuted under Appellate Division Docket No. 2020-09175 and not under Appellate Division Docket No. 2020-09200, on or before April 22, 2022, the appellant shall file replacement copies of the appendix and appellant's brief that do not contain Appellate Division Docket No. 2020-09200, via NYSCEF, if applicable, or, if NYSCEF is not mandated, upload digital replacement copies of the appendix and appellant's brief that contain the corrected covers, and on or before April 22, 2022, the appellant shall serve and file a supplemental appendix containing the judgment via NYSCEF, if applicable, or, if NYSCEF is not mandated, by serving the supplemental appendix, and uploading a digital copy of the supplemental appendix, with proof of service thereof, through the digital portal on this Court's website; and it is further,

ORDERED that the motion to dismiss the appeals on the ground that the right of direct appeal from the orders terminated upon entry the judgment (see Matter of Aho, 39 NY2d 241), is denied; and it is further,

ORDERED that the branches of the respondent's motion which are, in effect, to strike stated portions of the appellant's brief on the ground that they raise issues that are not properly part of the appeals and to dismiss stated portions of the appeals is denied; and it is further,

ORDERED that the branch of the respondent's motion which is for leave to serve and file an appendix is denied as unnecessary (see CPLR 5528; 22 NYCRR 1250.9[c]); and it is further,

ORDERED that the branch of the respondent's motion which is for an extension of time to serve and file a brief is granted, and the respondent shall serve and file a brief via NYSCEF, if applicable, or, if NYSCEF is not mandated, by serving the respondent's brief, and uploading a digital copy of the brief, with proof of service thereof, through the digital portal on this Court's website, on or before May 23, 2022.

CONNOLLY, J.P., RIVERA, MILLER and WOOTEN, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court