Appellate Division: Second Judicial Department

M304621

AFA/

MARK C. DILLON, J.P.

CHERYL E. CHAMBERS

LOURDES M. VENTURA

JAMES P. MCCORMACK, JJ.

2020-07547 Jonathan Mawere, etc., appellant, v Joel Landau, et al., respondents. (Index No. 501184/2012)

DECISION & ORDER ON MOTION

2023-00258, 2023-05259, 2023-05260

2023-05277

Jonathan Mawere, etc., appellant,

v Joel Landau, et al., respondents.

(Index No. 501184/2012)

2023-10264

Jonathan Mawere, etc., appellant,

v Joel Landau, et al., respondents.

(Index No. 501184/2012)

2023-12424

Jonathan Mawere, etc., appellant,

v Joel Landau, et al., respondents.

(Index No. 501184/2012)

2024-05138

Jonathan Mawere, etc., appellant,

v Joel Landau, et al., respondents.

(Index No. 501184/2012)

Appeals from seven orders of the Supreme Court, Kings County, dated August 17, 2020, November 18, 2022 (two orders), March 23, 2023, May 9, 2023, August 22, 2023, December 8, 2023, respectively, and a judgment of the same court dated April 16, 2024. Motion by the appellant to extend the time to serve and file a reply brief on the appeals from the orders dated November 18, 2022 (two orders), March 23 2023, and May 9, 2023. Motion by the respondents Judith Eisen and Garfunkel Wild, P.C., to dismiss the appeals from the orders on the ground that the right of direct appeal from the orders terminated upon entry in the above-entitled action of the judgment. Cross-motion by the appellant to deem the notices of appeal from the orders to be a premature notice of appeal from the judgment. Application by Dorothy Rubin, as executor of the estate of Liebel Rubin, to be substituted on the appeal from the judgment for the deceased respondent Leibel Rubin, and to amend the caption accordingly. By order to show cause dated June 28, 2024, the parties were directed to show cause before this Court why an order should or should not be made and entered (1) dismissing the appeal from the judgment on the ground that the notice of appeal from the judgment was filed in violation of the statutory stay of proceedings (see CPLR 1015[a]; JP Morgan Chase Bank, N.A. v Rosemberg, 90 AD3d 713), which arose upon the death of the deceased respondent Leibel Rubin on December 22, 2023, and (2) vacating the judgment as a nullity (see CPLR 1015; Matter of Einstoss, 26 NY2d 181), and the application was held in abeyance. Cross-motion by the appellant, in effect, to substitute Dorothy Rubin, as executor of the estate of Liebel Rubin, for the deceased respondent Leibel Rubin, to amend the caption accordingly, and to deem the notice of appeal from the judgment to reflect Dorothy Rubin, as executor of the estate of Liebel Rubin, as a defendant in the caption. Separate motion by the appellant to extend the time to perfect the appeal from the order dated December 8, 2023.

Now, upon the order to show cause and the papers filed in response thereto, upon the papers filed in support of the motions and cross-motions and the papers filed in opposition thereto, and upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it is

ORDERED that the motion to dismiss the appeal from the judgment and to vacate the judgment as a nullity is denied; and it is further,

ORDERED that the application and the cross-motion by the appellant, in effect, to substitute Dorothy Rubin, as executor of the estate of Liebel Rubin, for the deceased respondent Leibel Rubin, to amend the caption accordingly, and to deem the notice of appeal from the judgment to reflect Dorothy Rubin, as executor of the estate of Liebel Rubin, as a defendant in the caption are granted, the notice of appeal from the judgment is deemed to reflect that Dorothy Rubin, as executor of the estate of Liebel Rubin, is a defendant (see CPLR 2001; Matter of Tagliaferri, 1 NY3d 605), and the caption is amended accordingly; and it is further,

ORDERED that the motion to dismiss the appeal from the order dated August 22, 2023, is denied as academic, as that appeal was withdrawn by decision and order on application of this Court dated July 17, 2024; and it is further,

ORDERED that the motion to dismiss the appeals from the orders dated August 17, 2020, November 18, 2022 (two orders), March 23, 2023, May 9, 2023, and December 8, 2023, on the ground that the right of direct appeal from the orders terminated upon entry in the above-entitled action of the judgment is 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 cross-motion to deem the notices of appeal from the orders to be a premature notice of appeal from the judgment is denied; and it is further,

ORDERED that the motion by the appellant to extend the time to serve and file a reply brief on the appeals from the orders dated November 18, 2022 (two orders), March 23 2023, and May 9, 2023, is granted, and on or before May 12, 2025, the appellant shall serve and file the reply brief via NYSCEF, if applicable, or, if NYSCEF is not mandated, serve the reply brief and upload a digital copy of the reply brief, with proof of service thereof, through the digital portal on this Court's website; and it is further,

ORDERED that the motion to extend the time to perfect the appeal from the order dated December 8, 2023, is granted, and on or before May 27, 2025, the appellant shall serve and file the record or appendix and the appellant's brief via NYSCEF, if applicable, or, if NYSCEF is not mandated, serve the record or appendix and the appellant's brief and upload digital copies of the record or appendix and the appellant's brief, with proof of service thereof, through the digital portal on this Court's website; and it is further,

ORDERED that on the Court's own motion, the time to perfect the appeal from the judgment is extended, and on or before May 27, 2025, the appellant shall serve and file the record or appendix and the appellant's brief via NYSCEF, if applicable, or, if NYSCEF is not mandated, serve the record or appendix and the appellant's brief and upload digital copies of the record or appendix and the appellant's brief, with proof of service thereof, through the digital portal on this Court's website.

DILLON, J.P., CHAMBERS, VENTURA and MCCORMACK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court