Appellate Division: Second Judicial Department

M291186

AFA/

MARK C. DILLON, J.P.

CHERYL E. CHAMBERS

WILLIAM G. FORD

LOURDES M. VENTURA, JJ.

2021-06247 Reuben David, etc., respondent-appellant, v Sidney Sternberger, etc., et al., appellants-respondents. (Index No. 611661/2016)

DECISION & ORDER ON MOTION

Appeal and cross-appeal from an order of the Supreme Court, Suffolk County, dated July 19, 2021. Motion by the appellants-respondents to dismiss the cross-appeal based upon the respondent-appellant's failure to pay his one-half share of the cost of the joint record and to strike stated portions of the respondent-appellant's reply brief on the ground that those portions contain improper sur-reply. Cross-motion by the respondent-appellant, inter alia, to strike stated portions of the appellants-respondents' reply brief on the ground that they improperly raise arguments for the first time in reply, or, in the alternative, for leave to serve and file a sur-reply brief.

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 cross-appeal is denied on condition that on or before October 23, 2023, the respondent-appellant pay his one-half share of the cost of the joint record as reflected in the invoice annexed to the cross-motion as Exhibit A (see 22 NYCRR 1250.9[f][1][ii]) and file proof of payment with the Acting Clerk of this Court via e-mail to [email protected]; and it is further,

ORDERED that the branch of the motion which is to strike stated portions of the respondent-appellant's reply brief on the ground that those portions contain improper sur-reply 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 cross-motion is denied.

DILLON, J.P., CHAMBERS, FORD and VENTURA, JJ., concur.

ENTER:

Darrell M. Joseph

Acting Clerk of the Court