Appellate Division: Second Judicial Department

M289094

AFA/

MARK C. DILLON, J.P.

ANGELA G. IANNACCI

JOSEPH J. MALTESE

JANICE A. TAYLOR, JJ.

2020-07490 In the Matter of Charlene Nederlander, deceased. James Couri, petitioner-appellant; Kristina Gustafson, respondent-respondent. (File No. 2784/2019)

DECISION & ORDER ON MOTION

2021-02450

In the Matter of Charlene Nederlander, deceased.

James Couri, petitioner-appellant;

Kristina Gustafson, respondent-respondent.

(File No. 2784/2019)

Appeals from two orders of the Surrogate's Court, Suffolk County, dated September 18, 2020, and March 8, 2021, respectively. Motion by the respondent to dismiss the appeal from the order dated March 8, 2021, on the grounds that no appeal lies from an order denying reargument, that the record contains matter dehors the record, and the appellant's brief refers to matters dehors the record, or in the alternative, for an extension of time to file a respondent's brief. Motion by the appellant for a preference in the calendaring of the appeals.

Upon the papers filed in support of the motion and the papers filed in relation thereto, it is

ORDERED that the branch of the motion which is to dismiss the appeal from the order dated March 8, 2021, on the ground that no appeal lies from an order denying reargument, is held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof; and it is further,

ORDERED that the branch of the motion which is to dismiss the appeal from the order dated March 8, 2021, on the ground that the record contains matter dehors the record, and the appellant's brief refers to matters dehors the record, is granted to the extent that the appendix and appellant's brief are stricken, and on or before June 20, 2023, the appellant shall serve a replacement appendix which does not contain the declarations of Tim McCoy, dated August 21, 2021, and January 18, 2022, and which includes page numbers in accordance with CPLR 5529(b), and a replacement appellant's brief which does not refer to the declarations of Tim McCoy, dated August 21, 2021, and January 18, 2022, and upload a digital copy of the replacement appendix and appellant's 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's motion which is to extend the time to serve and file a brief is granted, and on or before July 20, 2023, the respondent shall serve and file the respondent's brief 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 motion by the appellant is denied; and it is further,

ORDERED on the Court's own motion, the appellant is precluded from making any further motions in the above-referenced dockets without prior leave of this Court.

DILLON, J.P., IANNACCI, MALTESE and TAYLOR, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court