Appellate Division: Second Judicial Department

M294715

AFA/

VALERIE BRATHWAITE NELSON, J.P.

JOSEPH J. MALTESE

LINDA CHRISTOPHER

CARL J. LANDICINO, JJ.

2021-05908 Holly Finley, respondent, v Richard Finley, appellant. (Index No. 32098/2020)

DECISION & ORDER ON MOTION

Appeal from a decision of the Supreme Court, Rockland County, dated July 15, 2021. By order to show cause dated January 17, 2023, the parties to the appeal were directed to show cause before this Court why an order should or should not be made and entered dismissing the appeal on the ground that no appeal lies from a decision (see Schicchi v J.A. Green Constr. Co., 100 AD2d 509), or, in the alternative, on the ground that the right of direct appeal from the decision and order terminated upon entry in the above-entitled action of a judgment of the same court dated December 2, 2021 (see Matter of Aho, 39 NY2d 241). Application by the appellant, inter alia, to deem the notice of appeal from the decision to be a premature notice of appeal from the judgment and to file a supplemental record containing certain material.

Upon the order to show cause and the papers filed in response thereto, and upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it is

ORDERED that the motion to dismiss the appeal from the decision is denied; and it is further,

ORDERED that the application is granted to the extent that the notice of appeal from the decision is deemed to be a premature notice of appeal from the judgment (see CPLR 5520[c]), the record and briefs filed in connection with the appeal from the decision are deemed to be filed in connection with the appeal from the judgment, and on or before April 5, 2024, the appellant shall serve and file a supplemental record containing the judgment and the stipulation of settlement dated May 17, 2021, via NYSCEF, if applicable, or, if NYSCEF is not mandated, by serving the supplemental record, and uploading a digital copy of the supplemental record, with proof of service thereof, through the digital portal on this Court's website, and the application is otherwise denied.

BRATHWAITE NELSON, J.P., MALTESE, CHRISTOPHER and LANDICINO, JJ., concur.

ENTER:

Darrell M. Joseph

Acting Clerk of the Court