Appellate Division: Second Judicial Department

M282191

MB/

MARK C. DILLON, J.P.

COLLEEN D. DUFFY

JOSEPH J. MALTESE

LARA J. GENOVESI, JJ.

2020-09665 John Borzilleri, appellant-respondent, v Sarah Boyce Borzilleri, respondent- appellant. (Index No. 5089/2017)

DECISION & ORDER ON MOTION

Appeal and cross appeal from a judgment of the Supreme Court, Suffolk County, entered December 2, 2020. Motion by the respondent-appellant (1) to strike stated portions of the appellant-respondent's brief and to dismiss the appeal on the ground that the brief refers to matter dehors the record, (2) to direct the appellant-respondent to remove pages 1069 through 1084 from the joint appendix on the ground that they contain matter dehors the record and re-label the joint appendix as an appendix or, in the alternative, to dismiss the appeal on the ground that the joint appendix is inadequate, and (3) to extend the time to serve and file an answering brief and appendix. By order to show cause dated January 19, 2022, the parties were directed to show cause before this Court why an order should or should not be made and entered dismissing the appeal and cross appeal on the ground that the appeal and cross appeal have been rendered academic, in whole or in part, by a stipulation of the parties, which was so-ordered on August 16, 2021, and the respondent-appellant's motion was held in abeyance in the interim.

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

ORDERED that the motion to dismiss the appeal and cross appeal on the ground that the appeal and cross appeal have been rendered academic, in whole or in part, by the stipulation of the parties, which was so-ordered on August 16, 2021, is held in abeyance and referred to the panel of Justices hearing the appeal and cross appeal for determination upon the argument or submission thereof; and it is further,

ORDERED that the branch of the respondent-appellant's motion which is to strike stated portions of the appellant-respondent's brief on the ground that they refer to matter dehors the record is granted and on or before April 29, 2022, the appellant-respondent shall serve and file a replacement brief that does not refer to matter dehors the record, via NYSCEF, if applicable, or, if NYSCEF is not mandated, serve the replacement brief and upload a digital copy of the replacement brief, with proof of service thereof, through the digital portal on this Court's website; and it is further,

ORDERED that the branch of the respondent-appellant's motion which is to direct the appellant-respondent to remove pages 1069 through 1084 from the joint appendix on the ground that they contain matter dehors the record is granted to the extent that the joint appendix is stricken, and on or before April 29, 2022, the appellant-respondent shall serve and file a replacement joint appendix which does not contain the material on pages 1069 through 1084 of the original joint appendix, via NYSCEF, if applicable, or, if NYSCEF is not mandated, by serving the replacement joint appendix, and uploading a digital copy of the replacement joint appendix, with proof of service thereof, through the digital portal on this Court's website; and it is further,

ORDERED that branch of the respondent-appellant's motion which is to extend the time to serve and file an answering brief is granted, and on or before May 30, 2022, the respondent-appellant shall serve and file the respondent-appellant's brief, including the points of argument on the cross appeal (see 22 NYCRR 1250.9[f][1][iv]), via NYSCEF, if applicable, or, if NYSCEF is not mandated, serve the brief and upload a digital copy of the brief, with proof of service thereof, through the digital portal on this Court's website; and it is further,

ORDERED that the respondent-appellant's motion is otherwise denied.

DILLON, J.P., DUFFY, MALTESE and GENOVESI, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court