Appellate Division: Second Judicial Department

M302455

AFA/

LARA J. GENOVESI, J.P.

VALERIE BRATHWAITE NELSON

LOURDES M. VENTURA

JAMES P. MCCORMACK, JJ.

2023-09791 In the Matter of Dennis Hawkins, appellant, v Estelle Smith, respondent; Harold Culler, nonparty-respondent. (Index No. 518163/2022)

DECISION & ORDER ON MOTION

Appeal from an order of the Supreme Court, Kings County, dated June 21, 2023, which was deemed dismissed pursuant to 22 NYCRR 1250.10(a). Motion by the nonparty-respondent, inter alia, in effect, to dismiss the appeal on the ground that the appellant failed to serve a subpoena upon the clerk of the court of original instance in accordance with this Court's rules (see 22 NYCRR 1250.9[a][2][i]), to dismiss the appeal on the ground that the appellant failed to obtain, serve, and file the transcript of the proceedings, or in the alternative, to extend the time to serve and file a brief. Motion by the appellant pursuant to 22 NYCRR 1250.10(c) to vacate the dismissal of the appeal, to extend the time to perfect the appeal, for a waiver of the filing fees and, in effect, to enlarge the record to include certain material.

Upon the papers filed in support of the motion by nonparty-respondent and the papers filed in opposition thereto, and upon the papers filed in support of the motion by the appellant and no papers having been filed in opposition or in relation thereto, it is

ORDERED that the branch of the motion by the nonparty-respondent which is, in effect, to dismiss the appeal on the ground that the appellant failed to serve a subpoena upon the clerk of the court of original instance in accordance with this Court's rules (see 22 NYCRR 1250.9[a][2][i]) is denied as academic as the subpoena was served; and it is further,

ORDERED that the branches of the motion by the appellant which are to vacate the dismissal of the appeal and to extend the time to perfect the appeal, and the branch of the motion by the nonparty-respondent which is to dismiss the appeal for failure to obtain, serve, and file the transcript of the proceedings are granted to the extent that the dismissal of the appeal pursuant to 22 NYCRR 1250.10(a) is vacated, and on or before February 28, 2025, the appellant shall serve the transcripts of the proceedings which occurred on December 19, 2022, March 15, 2023, and May 10, 2023, and upload digital copies of those transcripts, with proof of service thereof, through the digital portal on this Court's website; and it is further,

ORDERED that the branch of the motion by the nonparty-respondent which is to extend the time to serve and file a brief is granted, and on or before March 31, 2025, the nonparty-respondent shall serve and file the nonparty-respondent's brief via NYSCEF, with proof of service thereof upon the appellant; and it is further,

ORDERED that the motions are otherwise denied.

GENOVESI, J.P., BRATHWAITE NELSON, VENTURA and MCCORMACK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court