Appellate Division: Second Judicial Department

M309934

AFA/

COLLEEN D. DUFFY, J.P.

PAUL WOOTEN

LAURENCE L. LOVE

PHILLIP HOM, JJ.

2024-10554 Marjorie Thompson, appellant, v Victor Philander, etc., et al., respondents, et al., defendant. (Index No. 535547/2022)

ORDER TO SHOW CAUSE

Appeal from an order of the Supreme Court, Kings County, dated August 19, 2024. Motion by the respondent Wayne Mitchell to dismiss the appeal on the ground that the appeal was untimely taken or, in the alternative, to extend the time to serve and file a brief. In a letter to this Court dated April 21, 2025, counsel for the respondent Wayne Mitchell in response to an application by the appellant for an extension of time to perfect the appeal stated, inter alia, that the appeal was defective on grounds the appeal was untimely taken. The application was granted and the appellant perfected the appeal on June 11, 2025. In response to a status inquiry from this Court on October 7, 2025, counsel for the respondent Wayne Mitchell gave no indication that there were any impediments to the calendaring of the appeal and counsel for the respondent Wayne Mitchell was informed that no respondent's brief had been filed on his behalf and argument by his counsel would not permitted. The matter was placed on the calendar on December 4, 2025. On November 24, 2025, counsel for the respondent Wayne Mitchell filed a motion, inter alia, to dismiss the appeal on the ground that the appeal was untimely taken.

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 as untimely taken is granted, and the appeal is dismissed (see CPLR 5513), without costs or disbursements; and it is further,

ORDERED that the motion is otherwise denied as academic; and it is further,

ORDERED that on the Court's own motion, Law Offices of Jay S. Markowitz P.C., counsel for the respondent Wayne Mitchell, is directed to show cause before this Court why an order should or should not be made and entered imposing sanctions and/or costs, if any, against it pursuant to 22 NYCRR 1250.2(c) as this Court may deem appropriate, by serving and filing, via NYSCEF, a digital copy of an affirmation or an affidavit on that issue on or before January 12, 2026, and/or by uploading a digital copy of an affirmation or affidavit on that issue, with proof of service thereof, through the digital portal on this Court's website on or before January 12, 2026; and it is further,

ORDERED that the Clerk of this Court, or his designee, is directed to serve a copy of this order to show cause upon the parties or their attorneys, via email to the email address provided to this Court, or if no email address is available for service by regular mail.

DUFFY, J.P., WOOTEN, LOVE and HOM, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court