Appellate Division: Second Judicial Department

M311539

ECQ/

FRANCESCA E. CONNOLLY, J.P.

CHERYL E. CHAMBERS

BARRY E. WARHIT

LAURENCE L. LOVE, JJ.

2020-02009 Nationstar Mortgage LLC, respondent, v Richard Devivo, appellant, et al., defendant. (Index No. 23474/2013)

DECISION & ORDER ON MOTION

2023-12033

U.S. Bank National Association, respondent,

v Richard Devivo, appellant, et al., defendant.

(Index No. 23474/2013)

2024-03473

U.S. Bank National Association, respondent,

v Richard Devivo, etc., appellant, et al., defendant.

(Index No. 23474/2013)

Appeals from two orders of the Supreme Court, Suffolk County, dated November 18, 2019, and December 5, 2023, respectively, and an order and judgment (one paper) of the same court dated December 5, 2023. By order to show cause dated May 10, 2024, 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 November 18, 2019, on the ground that the right of direct appeal from the order terminated upon entry in the above-entitled action of the order and judgment (see Matter of Aho, 39 NY2d 241). Motion by the appellant, in effect, to consolidate the appeal from the order dated November 18, 2019, with the appeal from the order and judgment dated and to stay enforcement of the order and judgment, including the sale of the subject property, pending hearing and determination of the appeals. Application by the appellant to extend the time to perfect 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 motion and the application by the appellant and no papers having been filed in opposition or in relation thereto, it is

ORDERED that the motion to dismiss the appeal from the order dated November 18, 2019, is held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the submission thereof; and it is further,

ORDERED that on the Court's own motion the appeal from the order dated December 5, 2023, is dismissed, without costs or disbursements, 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 (see Matter of Aho, 39 NY2d 241); and it is further,

ORDERED that the branch of the motion by the appellant which is to consolidate the appeal from the order dated November 18, 2019, with the appeal from the order and judgment, and the application by the appellant to extend the time to perfect the appeal from the order and judgment are granted, the appeal from the order dated November 18, 2019, is consolidated with the appeal from the order and judgment, the record and briefs filed in connection with the appeal from the order dated November 18, 2019, are deemed also to be filed in connection with the appeal from the order and judgment, the parties shall file digital replacement copies of the record and briefs which contain Appellate Division Docket No. 2024-03473 in addition to Appellate Division Docket Nos. 2020-02009 on the covers via NYSCEF, if applicable, or, if NYSCEF is not mandated, upload digital replacement copies of the record and briefs that contain the corrected covers, with proof of service thereof, through the digital portal on this Court's website, and on or before April 10, 2026, the appellant shall serve and file a supplemental brief containing any points of argument in connection with the appeal from the order and judgment and a supplemental record which contains any papers constituting the record on appeal from the order and judgment that are not already contained in the record filed in connection with the appeal from the order dated November 18, 2019, via NYSCEF, if applicable, or, if NYSCEF is not mandated, upload a digital copy of the supplemental brief and record, 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 appeal from the order and judgment will be heard on submission, and no oral argument shall be permitted; and it is further,

ORDERED that the branch of the motion by the appellant which is to stay enforcement of the order and judgment, including the sale of the subject property, is granted and enforcement of the order and judgment, including the sale of the subject property, is stayed, pending hearing and determination of the appeals.

CONNOLLY, J.P., CHAMBERS, WARHIT and LOVE, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court