Appellate Division: Second Judicial Department

M289483

AFA/

BETSY BARROS, J.P.

PAUL WOOTEN

WILLIAM G. FORD

BARRY E. WARHIT, JJ.

2022-05123 Paul McErlean, appellant, v City of Long Beach, respondent. (Index No. 607766/2016)

DECISION & ORDER ON MOTION

On the Court's own motion, it is

ORDERED that the decision and order on motion of this Court dated June 2, 2023, in the above-entitled case is recalled and vacated, and the following decision and order on motion is substituted therefor:

Appeal from an order of the Supreme Court, Nassau County, dated May 26, 2022. Motion by the respondent to strike stated portions of the record on the ground that they contain matter dehors the record, to strike stated portions of the appellant's brief on the ground that they refer to matter dehors the record, and to extend the time to serve and file respondent's brief. Motion by the appellant for summary reversal of the order.

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

ORDERED that the branches of the motion by the respondent which are to strike stated portions of the record on the ground that they contain matter dehors the record and to strike stated portions of the appellant's brief on the ground that they refer to matter dehors the record are granted, pages 77-86 and 225-256 of the record are stricken, and the second sentence of the paragraph "47," as well as the entirety of the paragraphs "48," "49," and "50" on page 13 of the appellant's brief are stricken, the last paragraph appearing on page 29 of the appellant's brief beginning with the words, "In this case" through the first incomplete paragraph on page 31 of the appellant's brief ending with the words "ministerial issue" are stricken, and the last paragraph on page 41 of the appellant's brief beginning with the words, "A Summons and Complaint" through and including the first two full paragraphs on page "42"of the appellant's brief ending with the words, "interest of justice" are stricken, and on or before July 3, 2023, the appellant shall serve and file, via NYSCEF, a replacement record and brief that do not contain or refer to the stricken material and are in other respects the same as the record and brief previously filed; and it is further,

ORDERED that the branch of the motion by the respondent which is to extend the time to serve and file a brief is granted, and on or before August 2, 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.

BARROS, J.P., WOOTEN, FORD and WARHIT, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court