Pratt v. Melton

— Motion by respondent to dismiss petitioner’s cross appeal for failure of prosecution denied, without costs. Cross motion by petitioner for order directing that respondent shall be deemed the appellant and shall file and serve record and brief first (22 NYCRR 800.9 [e]), granted, without costs. This proceeding was brought to annul respondent’s determination suspending petitioner’s driver’s license for 30 days. By judgment entered October 6, 1978, Special Term denied respondent’s motion to transfer the proceeding pursuant to CPLR 7804 (subd [g]), denied respondent’s objection in point of law and granted petitioner’s motion for an order annulling the suspension. Respondent appealed by notice of appeal dated October 11, 1978. Petitioner filed a notice of cross appeal on October 24, 1978 for the sole purpose of also bringing up for review Special Term’s failure to determine that part of his motion which, inter alia, sought to declare certain sections of the Vehicle and Traffic Law unconstitutional. Under such circumstances, it is clear that respondent is the main appellant and should therefore be required to file and serve the record and brief first. Mahoney, P. J., Greenblott, Sweeney, Main and Mikoll, JJ., concur.