Appellate Division: Second Judicial Department

M296603

AFA/

ANGELA G. IANNACCI, J.P.

LINDA CHRISTOPHER

WILLIAM G. FORD

LOURDES M. VENTURA, JJ.

2022-04398 Niall Marry, etc., et al., appellants, v Newburgh Enlarged City School District, respondent. (Index No. 2526/2020)

DECISION & ORDER ON MOTION

Appeal from an order of the Supreme Court, Orange County, dated May 4, 2022. Motion by the respondent to dismiss the appeal for failure comply with a decision and order of this Court dated May 12, 2023, to dismiss the appeal on the ground that the appellants' reply brief cited, but failed to annex a copy of, an unpublished decision, or, in the alternative, to strike stated portions of the appellants' reply brief on the ground that they improperly raise arguments for the first time on appeal.

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

ORDERED that the branch of the motion which is to dismiss the appeal for failure to comply with the decision and order on motion of this Court dated May 12, 2023, is granted to the extent that pages 93-131 and 139-212 are stricken, and on or before July 23, 2024, the appellants shall serve and file a replacement record that does not contain the stricken material and is in all other respects the same as the record previously filed, via NYSCEF, if applicable, or, if NYSCEF is not mandated, serve the replacement record and upload a digital copy of the replacement 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which is to dismiss the appeal on the ground that the appellants' reply brief cited, but failed to annex a copy of, an unpublished decision is granted to the extent that on or before July 23, 2024, the appellants shall serve and file a replacement reply brief which annexes all unpublished decisions cited therein and which is in all other respects the same as the reply brief previously filed, via NYSCEF, if applicable, or, if NYSCEF is not mandated, serve the replacement reply brief and upload a digital copy of the replacement reply brief, 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 strike stated portions of the reply brief on the ground that they improperly raise arguments for the first time on appeal is held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

IANNACCI, J.P., CHRISTOPHER, FORD and VENTURA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court