Appellate Division: Second Judicial Department

M301563

AFA/

ANGELA G. IANNACCI, J.P.

PAUL WOOTEN

BARRY E. WARHIT

CARL J. LANDICINO, JJ.

2023-04744 Marcus Nedd, respondent, v Bernadette Nedd, appellant. (Index No. 552993/2020)

DECISION & ORDER ON MOTION

Appeal from a decision of the Supreme Court, Kings County, dated March 29, 2023. By order to show cause dated November 6, 2024, the parties were directed to show cause before this Court why an order should or should not be made and entered dismissing the appeal in the above-entitled action on the ground that no appeal lies from a decision (see Schicchi v J. A. Green Constr. Co., 100 AD2d 509), and/or on the ground that the decision was superseded by a judgment of the same court dated August 1, 2023. Application by the appellant, inter alia, in effect, to deem the notice of appeal from the decision to be a premature notice of appeal from the judgment.

Now, upon the order to show cause and the papers filed in response thereto, it is

ORDERED that the motion to dismiss the appeal 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 January 21, 2025, the appellant shall serve and file a supplemental record containing the judgment, 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 the application is otherwise denied.

IANNACCI, J.P., WOOTEN, WARHIT and LANDICINO, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court