Kapsis v. Peragine

Full title: James L. Kapsis, appellant, v. Michael S. Peragine, et al., respondents.

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

Date published: Aug 17, 2011

Motion No: 2010-00963 (N.Y. App. Div. Aug. 17, 2011)

Opinion

Motion No: 2010-00963 Index No. 02-013623M123844

08-17-2011

James L. Kapsis, appellant, v. Michael S. Peragine, et al., respondents.

REINALDO E. RIVERA

, J.P.

RANDALL T. ENG

SHERI S. ROMAN

ROBERT J. MILLER, JJ.

DECISION & ORDER ON MOTION

Motion by the respondents to dismiss an appeal from a judgment of the Supreme Court, Nassau County, entered December 16, 2009, on the grounds (1) that the judgment was entered upon the appellant's default, (2) that certain issues raised on the appeal from the judgment are barred by the doctrine of Bray v Cox (38 NY2d 350), or (3) that the appendix is inadequate, and to impose a sanction upon the appellant, or, in the alternative, to enlarge the time to serve and file a brief.

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 on the ground that it was entered upon the appellant's default is granted to the extent that the appeal from so much of the judgment as awarded the sum of $21,000 in costs in the form of attorney's fees is dismissed (see CPLR 5511) on the ground that the award of attorney's fees was entered on the appellant's default, and that branch of the motion is otherwise denied; and it is further,

ORDERED that the branch of the motion which is to dismiss the appeal on the ground that certain issues raised on the appeal from the judgment are barred by the doctrine of Bray v Cox (38 NY2d 350) is held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof; and it is further,

ORDERED that the branch of the motion which is to dismiss the appeal on the ground that the appendix is inadequate is denied on condition that on or before September 7, 2011, the appellant file properly settled copies of the transcripts contained in the appendix (see CPLR 5525[c]); and it is further,

ORDERED that the branch of the motion which is to enlarge the time to serve and file a brief is granted, the respondents' time to serve and file a brief is enlarged until October 7, 2011, and the respondents' brief must be served and filed on or before that date.

RIVERA, J.P., ENG, ROMAN and MILLER, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court