Opinion
Motion No: 2010-11684 Index No. 7359/08M124793
08-22-2011
Travelers Casualty and Surety Company of America, respondent, v. Barry Stransky, et al., appellants.
, J.P.
RUTH C. BALKIN
THOMAS A. DICKERSON
CHERYL E. CHAMBERS, JJ.
DECISION & ORDER ON MOTION
On the Court's own motion, it is
ORDERED that the decision and order on motion dated August 16, 2011, in the above-entitled case is recalled and vacated, and the following decision and order on motion is substituted therefor:
Motion by the respondent to dismiss an appeal from an order of the Supreme Court, Queens County, entered October 12, 2010, on the grounds that it has been rendered academic by a settlement entered into between the parties on January 24, 2011, that the right of direct appeal terminated upon entry of a judgment of the same court entered December 28, 2010, or that the record on appeal is inadequate, to direct the appellants to serve and file a supplemental record, and 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 on the Court's own motion, the notice of appeal from the order entered October 12, 2010, is deemed to be a premature notice of appeal from a judgment of the same court entered December 28, 2010 (see CPLR 5520[c]); and it is further,
ORDERED that the branch of the motion which is to dismiss the appeal on the ground that it has been rendered academic, 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 direct the appellants to serve and file a supplemental record is granted to the extent that on or before August 30, 2011, the appellants shall serve and file a supplemental record containing a stipulation dated October 21, 2010, and the judgment entered December 28, 2010; 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 respondent's time to serve and file a brief is enlarged until September 29, 2011, and the respondent's brief must be served and filed on or before that date; and it is further,
ORDERED that the motion is otherwise denied.
DILLON, J.P., BALKIN, DICKERSON and CHAMBERS, JJ., concur.
ENTER:
Matthew G. Kiernan
Clerk of the Court