HSBC Bank, U.S., N.A. v. Simms

Full title: HSBC Bank USA, National Association, etc., plaintiff-respondent, v. Keith…

Court: Supreme Court of the State of New York Appellate Division: Second Judicial Department

Date published: May 27, 2016

2016 N.Y. Slip Op. 74887 (N.Y. App. Div. 2016)

Opinion

2015-08198 2015-08200

05-27-2016

HSBC Bank USA, National Association, etc., plaintiff-respondent, v. Keith Simms, et al., defendants, Michelle Simms Parris, appellant, Emigrant Mortgage Company, Inc., defendant-respondent.

MARK C. DILLON, J.P.

M212354

E/sl

MARK C. DILLON, J.P.

CHERYL E. CHAMBERS

SYLVIA O. HINDS-RADIX

VALERIE BRATHWAITE NELSON, JJ.

(Index No. 33094/09)

DECISION & ORDER ON MOTION

Motion by the appellant to stay all proceedings in the above-entitled action and to stay enforcement of two orders of the Supreme Court, Kings County, dated October 22, 2013, and April 1, 2015, respectively, pending hearing and determination of appeals from the orders. Separate motion by the respondent HSBC Bank USA, National Association, to stay the trial in the above-entitled action pending hearing and determination of the appeals. Separate motion by the respondent HSBC Bank USA, National Association, to dismiss the appeal from so much of the order dated October 22, 2013, as determined its cross motion on the ground that no appeal lies from that portion of the order as it was entered upon the default of the appellant, to strike pages 1083 through 1167 of the record on the ground that those pages contain matter dehors the record, or, in the alternative, to direct the appellant to serve and file a supplemental record containing the papers filed by it in connection with the cross motion that was determined by the order dated October 22, 2013, or for leave to serve and file a supplemental record containing that material, and to enlarge its 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 appellant's motion which is to stay the trial and the respondent's motion to stay the trial are granted, and the trial in the above-entitled action is stayed pending hearing and determination of the appeals; and it is further,

ORDERED that the appellant's motion is otherwise denied; and it is further,

ORDERED that the branch of the respondent's motion which is to dismiss the appeal from so much of the order dated October 22, 2013, as determined its cross motion on the ground that no appeal lies from that portion of the order as it was entered upon the default of the appellant 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 branch of the respondent's motion which is to strike pages 1083 through 1167 of the record on the ground that those pages contain matter dehors the record is granted, and on or before June 27, 2016, the appellant shall remove those pages from the copies of the record filed with the Clerk of the Court and correct the table of contents in those copies of the record, or serve and file a replacement record that does not contain the stricken material; and it is further,

ORDERED that on the Court's own motion, the appellant's brief is stricken, and on or before June 27, 2016, the appellant shall serve and file a replacement brief that does not refer to the stricken material; and it is further,

ORDERED that the branch of the respondent's motion which is to direct the appellant to serve and file a supplemental record containing the papers filed by it in connection with the cross motion that was determined by the order dated October 22, 2013, or for leave to serve and file a supplemental record containing that material is granted to the extent that on or before June 27, 2016, the appellant shall serve and file a supplemental record that contains the papers filed by the respondent in connection with the cross motion that was determined by the order dated October 22, 2013, or include those papers in the replacement record, in the event that the appellant files a replacement record, and that branch of the motion is otherwise denied; and it is further,

ORDERED that the branch of the respondent's motion which is to enlarge its time to serve and file a brief is granted, the respondent's time to serve and file a brief is enlarged until July 27, 2016, and the respondent's brief must be served and filed on or before that date.

DILLON, J.P., CHAMBERS, HINDS-RADIX and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court