Appellate Division: Second Judicial Department

M310617

ID/

COLLEEN D. DUFFY, J.P.

PAUL WOOTEN

CARL J. LANDICINO

SUSAN QUIRK, JJ.

2024-11596 Benjamin Pena, appellant, v 227 East 45 LLC, et al., defendants/third-party plaintiffs-respondents, MDB Development Corp., defendant-respondent, et al., defendant; Everest Scaffolding Inc., third-party defendant-respondent, et al., third-party defendant. (Index No. 513093/2019)

DECISION & ORDER ON MOTION

2025-09321

Benjamin Pena, plaintiff, v 227 East 45 LLC,

et al., defendants/third-party plaintiffs-respondents,

MDB Development Corp., defendant-respondent;

Everest Scaffolding Inc., third-party

defendant-appellant, et al., third-party defendant.

(Index No. 513093/2019)

2025-10953

Benjamin Pena, plaintiff, v 227 East 45 LLC,

et al., defendants/third-party plaintiffs-respondents,

MDB Development Corp., et al., defendants-respondents,

et al., defendant; Everest Scaffolding Inc., third-party

defendant-respondent, et al., third-party defendant;

Mauro Cortez, nonparty-appellant.

(Index No. 513093/2019)

2025-11538

Benjamin Pena, appellant, v 227 East 45 LLC,

et al., defendants/third-party plaintiffs-respondents,

MDB Development Corp., defendant-respondent;

Everest Scaffolding Inc., third-party defendant-respondent,

et al., third-party defendants.

(Index No. 513093/2019)

Appeals from three orders of the Supreme Court, Kings County, dated August 11, 2024, June 18, 2025, and July 25, 2025, respectively and an order and judgment (one paper) of the same court dated September 2, 2025. Motion by the respondents 227 East 45 LLC and A & E Television Networks, LLC to dismiss the appeal from the order dated August 11, 2024, on the ground that it has been rendered academic. Motion by the respondent Everest Scaffolding Inc., to dismiss the appeal from the order dated August 11, 2024, on the ground that it has been rendered academic. Motion by the respondent MDB Development Corp., to dismiss the appeal from the order dated August 11, 2024, on the ground that it has been rendered academic or, in the alternative, to extend the time to serve and file a brief on the appeal from the order dated August 11, 2024. Separate motion by the respondents 227 East 45 LLC and A & E Television Networks, LLC to extend the time to serve and file a brief on the appeal from the order dated August 11, 2024. Separate motion by the respondent Everest Scaffolding Inc., to extend the time to serve and file a brief on the appeal from the order dated August 11, 2024. By order to show cause dated November 3, 2025, the parties were directed to show cause before this Court why an order should or should not be made and entered dismissing the appeal from the order dated August 11, 2024, on the ground that the right of direct appeal from that order terminated upon entry in the above-entitled action of the order and judgment, and the motions by the respondents were held in abeyance in the interim. Motion by the appellant Benjamin Pena, inter alia, in effect, to consolidate the appeal from the order dated August 11, 2024, with the appeal from the order and judgment.

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

ORDERED that the motion by the appellant Benjamin Pena is granted to the extent that the appeal from the order dated August 11, 2024, and the appeal from the order and judgment are consolidated, the record and brief filed in connection with the appeal from the order dated August 11, 2024, is deemed also to be filed in connection with the appeal from the order and judgment, and on or before February 17, 2026, the appellant Benjamin Pena shall serve and file, via NYSCEF, a replacement brief which contains Appellate Division Docket No. 2025-11538 in addition to Appellate Division Docket No. 2024-11596 on the cover, and a replacement record which also contains the order and judgment, the notice of appeal from the order and judgment, and Appellate Division Docket No. 2025-11538 in addition to Appellate Division Docket No. 2024-11596 on the cover, and that motion is otherwise denied; and it is further,

ORDERED that this Court's motion 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 on the Court's own motion, the appeals from the orders dated June 18, 2025, and July 25, 2025, are dismissed, without costs or disbursements, on the ground that the right of direct appeal from those orders terminated upon entry in the above-entitled action of the order and judgment (see Matter of Aho, 39 NY2d 241); and it is further,

ORDERED that the branch of the motion by the respondent MDB Development Corp., which is to extend the time to serve and file a brief on the appeal from the order dated August 11, 2024, the motion by the respondents 227 East 45 LLC and A & E Television Networks, LLC to extend the time to serve and file a brief on the appeal from the order dated August 11, 2024, and the motion by the respondent Everest Scaffolding Inc., to extend the time to serve and file a brief on the appeal from the order dated August 11, 2024, are granted, and on or before March 19, 2026, those respondents shall serve and file their respective respondents' briefs via NYSCEF, if applicable, or, if NYSCEF is not mandated, serve the briefs and upload a digital copy of the briefs, with proof of service thereof, through the digital portal on this Court's website; and it is further,

ORDERED that the motions by the respondents are otherwise denied.

DUFFY, J.P., WOOTEN, LANDICINO and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court