Appellate Division: Second Judicial Department

M286356

AFA/

VALERIE BRATHWAITE NELSON, J.P.

ANGELA G. IANNACCI

WILLIAM G. FORD

BARRY E. WARHIT, JJ.

2022-00306 Wythe Berry Fee Owner, LLC, respondent, v Wythe Berry, LLC, et al., defendants-appellants, et al., defendant; William Vale Hotel, LLC, et al., nonparty-appellants. (Index No. 514152/2021)

DECISION & ORDER ON MOTION

Appeals from an order of the Supreme Court, Kings County, dated January 13, 2022. Motion by the respondent to dismiss the appeal by the nonparty-appellants, inter alia, on the ground that no appeal lies from an order entered upon the default of the appealing party and to dismiss the appeal by the defendants-appellants for failure to timely perfect their appeal. Joint motion by the appellants to stay enforcement of the order, pending hearing and determination of the appeals, and for an award of costs and attorney's fees. Joint application by the appellants to extend the time to perfect the appeals.

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

ORDERED that the branch of the respondent's motion which is to dismiss the appeal by the nonparty-appellants on the ground that no appeal lies from an order entered upon the default of the appealing party is granted, and the appeal by the nonparty-appellants is dismissed (see CPLR 5511), without costs or disbursements; and it is further,

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

ORDERED that the appellants' joint motion is denied; and it is further,

ORDERED that the branch of the joint application which is to extend the time for defendants-appellants to perfect their appeal is granted, and on or before January 6, 2023, the defendants-appellants shall serve and file the record or appendix and the appellants' brief via NYSCEF, if applicable, or, if NYSCEF is not mandated, serve the record or appendix and the appellants' brief and upload digital copies of the record or appendix and the appellants' brief, with proof of service thereof, through the digital portal on this Court's website; and it further,

ORDERED that the joint application is otherwise denied as academic.

BRATHWAITE NELSON, J.P., IANNACCI, FORD and WARHIT, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court