Appellate Division: Second Judicial Department

M303209

AFA/

LARA J. GENOVESI, J.P.

WILLIAM G. FORD

LILLIAN WAN

JAMES P. MCCORMACK, JJ.

2023-08476, 2023-09745 Indymac Federal Bank FSB, respondent, v Mitha Joseph, appellant, et al., defendants. (Index No. 893/2009)

DECISION & ORDER ON MOTION

Appeals from an order of the Supreme Court, Kings County, dated July 3, 2010, and an order and judgment (one paper) of the same court dated September 8, 2023. Motion by the appellant to deem the notice of appeal from the order and judgment to be a notice of appeal from an amended order and judgment (one paper) of the same court dated September 8, 2023, in effect, to stay enforcement of the amended order and judgment, including the sale of the subject property, pending hearing and determination of the appeals, to consolidate the appeals, and to extend the time to perfect the appeals. Motion by the respondent to dismiss the appeal from the order on the grounds that no appeal lies from an order entered upon the default of the appealing party and/or the right of direct appeal from the order terminated upon entry of the amended order and judgment, to dismiss the appeal from the order and judgment on the grounds that it was superseded by the amended order and judgment, and the appendix is inadequate and contains matter dehors the record, or, in the alternative, to strike the appendix and direct the appellant to serve and file a replacement appendix containing certain material, and to extend the time to serve and file a brief.

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

ORDERED that the branch of the motion by the appellant which is to deem the notice of appeal from the order and judgment to be a notice of appeal from the amended order and judgment is granted, the notice of appeal from the order and judgment is deemed to be a notice of appeal from the amended order and judgment (see CPLR 5512[a]), and on or before March 31, 2025, the appellant shall serve and file a supplemental appendix containing the amended order and judgment, with notice of entry, via NYSCEF, if applicable, or, if NYSCEF is not mandated, serve the supplemental appendix and upload a digital copy of the supplemental appendix, with proof of service thereof, through the digital portal on this Court's website; and it is further,

ORDERED that the branches of the motion by the respondent which are to dismiss the appeal from the order and judgment on the grounds that it was superseded by the amended order and judgment and that the appendix is inadequate for failing to include the amended order and judgment or, in the alternative, to strike the appendix and direct the appellant to serve and file a replacement appendix containing the amended order and judgment are denied as academic; and it is further,

ORDERED that the branch of the motion by the appellant which is, in effect, to stay enforcement of the amended order and judgment, including the sale of the subject property, is granted, and enforcement of the amended order and judgment, including the sale of the subject property, is stayed, pending hearing and determination of the appeals; and it is further,

ORDERED that the branches of the motion by the appellant which are to consolidate the appeals and to extend the time to perfect the appeals are denied as academic as the appeals have been perfected and consolidated as of right (see 22 NYCRR 1250.9[f][3]); and it is further,

ORDERED that the branches of the motion by the respondent which are to dismiss the appeal from the order on the grounds that no appeal lies from an order entered upon the default of the appealing party and/or the right of direct appeal from the order terminated upon entry of the amended order and judgment are held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof; and it is further,

ORDERED that the branch of the motion by the respondent which is to extend the time to serve and filed a brief is granted, and on or before April 30, 2025, 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; and it is further,

ORDERED that the motion by the respondent is otherwise denied.

GENOVESI, J.P., FORD, WAN and MCCORMACK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court