Opinion
Motion No: CA 12-00269 DOCKET NO. CA 12-00270 DOCKET NO. CA 12-00271
02-28-2012
SAMAN SAFADJOU, PLAINTIFF-RESPONDENT, v. AZINE MOHAMMADI, DEFENDANT-APPELLANT. (APPEAL NO. 1.) SAMAN SAFADJOU, PLAINTIFF-RESPONDENT, v. AZINE MOHAMMADI, DEFENDANT-APPELLANT. (APPEAL NO. 2.) SAMAN SAFADJOU, PLAINTIFF-RESPONDENT, v. AZINE MOHAMMADI, DEFENDANT-APPELLANT. (APPEAL NO. 3.)
PRESENT: , P. J., SMITH, CENTRA, FAHEY, AND CARNI, JJ.
Appellant having moved to vacate the dismissal of the appeals taken herein from orders of the Supreme Court entered in the Office of the Clerk of the County of Monroe on November 23, 2010 (appeal No. 1), and January 6, 2011 (appeal No. 2), and having moved for an extension of time to perfect the appeal from a judgment of the Supreme Court entered in the Office of the Clerk of the County of Monroe on March 8, 2011 (appeal No. 3), and having moved for other relief, and
Respondent having cross-moved to dismiss the appeal from the judgment entered March 8, 2011 (appeal No. 3), on the ground that the appeal was not filed in accord with CPLR 5513 (a) and (d), and having moved for other relief,
Now, upon reading and filing the affirmation of Thomas N. Martin, Esq., dated February 3, 2012, the affirmation of Maureen A. Pineau, Esq., dated February 7, 2012, and the notices of motion and cross motion with proof of service thereof, and due deliberation having been had thereon,
It is hereby ORDERED that appellant's motion insofar as it seeks to vacate the dismissal of appeal Nos. 1 and 2 is granted on the condition that appellant perfects those appeals on or before April 30, 2012, and
It is further ORDERED that appellant's motion insofar as it seeks an extension of time to perfect appeal No. 3 is granted, on the condition that appellant perfects that appeal on or before April 30, 2012, and
It is further ORDERED that respondent's cross motion is denied (see Eigenbrodt v Eigenbrodt, 217 AD2d 752, 753).
Memorandum: Notwithstanding the prohibition set forth in CPLR 5511 against an appeal from an order or judgment entered upon the default of the appealing party, the appeal from the judgment brings up for review those " 'matters which were the subject of contest' " before the Supreme Court (Tun v Aw, 10 AD3d 651, 652, quoting James v Powell, 19 NY2d 249, 256 n 3).
Frances E. Cafarell, Clerk