Appellate Division: Second Judicial Department

M292432

AFA/

VALERIE BRATHWAITE NELSON, J.P.

PAUL WOOTEN

LILLIAN WAN

LAURENCE L. LOVE, JJ.

2023-00933 Keith T. Clinkscales, et al., appellants-respondents, v Jean R. Tostanoski, etc., et al., respondents-appella (Index No. 60704/2020)

DECISION & ORDER ON MOTION nts.

Appeal and cross-appeal from an order of the Supreme Court, Westchester County, dated December 13, 2022. The appeal was deemed dismissed pursuant to 22 NYCRR 1250.10(a). Motion by the appellants-respondents pursuant to 22 NYCRR 1250.10(c) to vacate the dismissal of the appeal and to extend the time to perfect the appeal. Separate motion by the appellants-respondents to stay the trial in the above-entitled action, pending hearing and determination of the appeal and cross-appeal, and for a preference in the calendaring of the appeal and cross-appeal. Motion by the respondents-appellants, inter alia, to deem their notice of appeal to reflect that Jean R. Tostanoski, Jay A. Fleischman, and Hudson Valley Eye Associates LLP, are the appealing parties.

Upon the papers filed in support of the motions and no papers having been filed in opposition or in relation thereto, it is

ORDERED that the motion by the appellants-respondents to vacate the dismissal of the appeal is granted, the dismissal of the appeal pursuant to 22 NYCRR 1250.10(a) is vacated, and on or before December 22, 2023, the appellants-respondents shall and serve and file the joint record or appendix and the appellants-respondents' brief via NYSCEF, if applicable, or, if NYSCEF is not mandated, serve the joint record or appendix and the appellants-respondents' brief and upload digital copies of the joint record or appendix and the appellants-respondents' 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 appellants-respondents to stay the trial in the above-entitled action, pending hearing and determination of the appeal and cross-appeal, and for a preference in the calendaring of the appeal and cross-appeal is denied; and it is further,

ORDERED that the motion by the respondents-appellants, inter alia, to deem their notice of appeal to reflect that Jean R. Tostanoski, Jay A. Fleischman, and Hudson Valley Eye Associates LLP, are the appealing parties is granted to the extent that the notice of appeal is deemed to reflect that Jean R. Tostanoski, Jay A. Fleischman, and Hudson Valley Eye Associates LLP, are the appealing parties (see CPLR 2001; Matter of Tagliaferri, 1 NY3d 605), and the caption is amended accordingly, and the motion is otherwise denied.

BRATHWAITE NELSON, J.P., WOOTEN, WAN and LOVE, JJ., concur.

ENTER:

Darrell M. Joseph

Acting Clerk of the Court