Appellate Division: Second Judicial Department

M295128

AFA/

BETSY BARROS, J.P.

CHERYL E. CHAMBERS

HELEN VOUTSINAS

LOURDES M. VENTURA, JJ.

2023-04571 In the Matter of Frank Giacobbe, deceased. Carmela Deraco, petitioner-respondent; Rosario Vizzari, objectant-appellant. (File No. 293/2018)

DECISION & ORDER ON MOTION

Appeal from an order of the Surrogate's Court, Rockland County, dated April 25, 2023. Motion by the respondent to dismiss the appeal on the ground that the right of direct appeal from the order terminated upon entry of a decree of the same court dated April 28, 2023, and on the ground that the record is inadequate or, in the alternative, to extend the time to serve and file a brief. Application by the appellant to deem the notice of appeal from the order to be a notice of appeal from the decree.

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

ORDERED that the application is granted and the notice of appeal from the order is deemed to be a notice of appeal from the decree (see CPLR 5512); and it is further,

ORDERED that the branch of the motion which is to dismiss the appeal on the ground that the right of direct appeal from the order terminated upon entry of the decree is denied; and it is further,

ORDERED that the branch of the motion which is to dismiss the appeal on the ground that the record is inadequate is granted to the extent that, on or before April 22, 2024, the appellant serve and file a supplemental record containing the citation, the objections to probate, and the decree dated April 28, 2023, via NYSCEF, if applicable, or, if NYSCEF is not mandated, serve the supplemental record and upload a digital copy of the supplemental record, with proof of service thereof, through the digital portal on this Court's website, and that branch of the motion is otherwise denied; 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 May 21, 2024, 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.

BARROS, J.P., CHAMBERS, VOUTSINAS and VENTURA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court