Appellate Division: Second Judicial Department

M289624

KS/

REINALDO E. RIVERA, J.P.

LARA J. GENOVESI

DEBORAH A. DOWLING

LILLIAN WAN, JJ.

2021-09017 Mendel E. Ofman, appellant, v Andrew L. Bluestone, defendant-respondent; Jacques Catafago, etc., et al., third-party defendants-respondents. (Index No. 506246/2014)

DECISION & ORDER ON MOTION

Appeal from an order of the Supreme Court, Kings County, dated November 16, 2021. Motion by the defendant-respondent to dismiss the appeal on the ground that the appendix is inadequate and for failing to serve a subpoena upon the clerk of the court of original instance in accordance with this Court's rules (see 22 NYCRR 1250.9[a][2][i]), or, in the alternative, to extend the time to file a respondent's brief, and for an award of costs. Cross-motion by the appellant for leave to file a supplemental appendix containing certain material, to extend the time to serve the subpoena upon the clerk of the court of original instance, for a preference in the calendaring of the appeal, and for an award of costs.

Upon the papers filed in support of the motion and cross-motion and the papers filed in opposition thereto, it is

ORDERED that the branch of the motion which is to dismiss the appeal on the ground that the appendix is inadequate and the branch of the cross-motion which is for leave to file a supplemental appendix containing certain material are granted to the extent that on or before July 21, 2023, the appellant shall serve and file a supplemental appendix containing the appellant's memorandum in opposition and response to the respondent's cross-motion (seq. 12), the "Plaintiff's Supplement to Motion Sequence 11 in Opposition to Defendant Motion Sequence 12 in Support of Pending Third Amended Complaint or in Alternative to Reinstate First Amended Complaint Nunc Pro Tunc," dated October 28, 2021, the appellant's CPLR 3101(d)(1)(i) disclosures, and NYSCEF document nos. 30-51, 54, 90, 105-135, 159-172, 178, 181, 203-204, 208, 212, 230, 235-238, 240, 244-245, 251-252, 255, and 264, via NYSCEF, if applicable, or, if NYSCEF is not mandated, serve the supplemental appendix and upload a digital copy of the supplemental appendix, with proof of service thereof, through the digital portal on this Court's website, and those branches of the motion and cross-motion are otherwise denied; and it is further,

ORDERED that the branch of the motion which is to dismiss the appeal for failing to issue a subpoena upon the clerk of the court of original instance in accordance with this Court's rules (see 22 NYCRR 1250.9[a][2][i]), and the branch of the cross-motion which is to extend the time to serve the subpoena upon the clerk of the court of original instance are denied as academic, as the subpoena was served; and it is further,

ORDERED that the branch of the motion which is to extend the time to serve and file a brief is granted, and on or before August 21, 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 branch of the motion which is for a preference is granted and the appeal will be calendared expeditiously after all of the briefs have been filed; and it is further,

ORDERED that the branches of the motion and the cross-motion which are for an award of costs are denied.

RIVERA, J.P., GENOVESI, DOWLING and WAN, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court