Tuthill Fin., L.P. v. Ujueta

Full title: Tuthill Finance, L.P., respondent, v. Albert Ujueta, appellant, et al.…

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

Date published: Mar 20, 2012

2012 N.Y. Slip Op. 67821 (N.Y. App. Div. 2012)

Opinion

Motion No: 2010-08750 Index No. 08-8740 M135015

03-20-2012

Tuthill Finance, L.P., respondent, v. Albert Ujueta, appellant, et al., defendants.

PETER B. SKELOS

, J.P.

MARK C. DILLON

RANDALL T. ENG

LEONARD B. AUSTIN, JJ.

DECISION & ORDER ON MOTION

Motion by the respondent, inter alia, to dismiss an appeal from an order of the Supreme Court, Westchester County, entered August 3, 2010, on the ground that the record and the appellant's brief contain or refer to matter dehors the record, to strike stated portions of the appellant's brief on the ground that it improperly raises arguments for the first time on appeal, and to enlarge the time to serve and file a brief. Application by the respondent pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to serve and file a brief.

Upon the papers filed in support of the motion and the application and the papers filed in opposition thereto, it is

ORDERED that the branch of the motion which is to dismiss the appeal is denied on condition that on or before April 11, 2012, the appellant (1) either remove pages 499 through 628 from the copies of the record filed with the Clerk of the Court or serve and file a replacement record that does not contain the material on those pages, and (2) delete material referring to pages 499 through 628 of the record from the copies of the brief filed with the Clerk of the Court or serve and file a replacement brief that does not refer to those pages; and it is further,

ORDERED that the branch of the motion which is to strike stated portions of the appellant's brief on the ground that it improperly raises arguments for the first time on appeal is denied without prejudice to raising this argument in the respondent's brief; and it is further,

ORDERED that the branch of the motion which is to enlarge the respondent's time to serve and file a brief and the application for the same relief are granted, the respondent's time to serve and file a brief is enlarged until May 11, 2012, 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.

SKELOS, J.P., DILLON, ENG and AUSTIN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court