Appellate Division: Second Judicial Department

M35723

A/sl

THOMAS A. ADAMS, J.P.

FRED T. SANTUCCI

REINALDO E. RIVERA

STEVEN W. FISHER, JJ.

2005-10233, 2005-10234, 2005-10235, 2005-10236 Zev Shapiro, respondent-appellant, v Sarah Shapiro, appellant-respondent. (Index No. 6809/01)

DECISION & ORDER ON MOTION

Motion by the appellant-respondent on appeals and cross appeals from (1) a decision of the Supreme Court, Westchester County, entered June 10, 2005, (2) a decision of the same court entered August 12, 2005, (3) corrected findings of fact and conclusions of law of the same court dated October 17, 2005, and (4) a corrected judgment of the same court, also dated October 17, 2005, inter alia, to stay enforcement of, among other things, those portions of the corrected judgment which directed her to pay 30 percent of the costs and expenses for private school tuition for the parties' children, transportation to and from school, summer camp, extracurricular activities, tutoring, and college expenses, retroactive to January 1, 2005, directed her to pay all arrears for those expenses on or before June 30, 2006, and, in effect, for a preference in the calendaring of the appeals. Separate motion by the respondent-appellant to stay enforcement of those portions of the corrected judgment which directed him to pay to the appellant-respondent the sum of $61,250, directed him to pay to the appellant-respondent one-half of the cash surrender value of his life insurance policies, and directed that the proceeds from the sale of the marital residence be apportioned 75 percent to the appellant-respondent and 25 percent to the him.

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

ORDERED that on the court's own motion, the appeals and cross appeals from the decisions (Appellate Division Docket Nos. 2005-10233 and 2005-10234), are dismissed, without costs or disbursements, as no appeal lies from a decision (see Schicchi v Green Constr. Corp., 100 AD2d 509); and it is further,

ORDERED that on the court's own motion, the appeal and cross appeal from the corrected findings of fact and conclusions of law (Appellate Division Docket No. 2005-10235), are dismissed, without costs or disbursements, as no appeal lies from findings of fact and conclusions of law (see Benedetto v O'Grady, 10 AD2d 628); and it is further,

ORDERED that the branch of the appellant-respondent's motion which is to stay enforcement of stated portions of the corrected judgment is granted to the extent that enforcement of those provisions of the judgment which directed the appellant-respondent to pay 30 percent of the costs and expenses for private school tuition for the parties' children, transportation to and from school, summer camp, extracurricular activities, tutoring, and college expenses, retroactive to January 1, 2005, and directed the appellant-respondent to pay all arrears for those expenses on or before June 30, 2006, is stayed pending hearing and determination of the appeal and the cross appeal from the judgment on condition that the appeal is perfected on or before March 20, 2006; and it is further,

ORDERED that the branch of the appellant-respondent's motion which is for a preference in the calendaring of the appeal and cross appeal is granted, and the appeal and cross appeal shall be calendared when they are fully perfected; and it is further,

ORDERED that the appellant-respondent's motion is otherwise denied; and it is further,

ORDERED that the motion by the respondent-appellant is granted to the extent that enforcement of those portions of the judgment which (1) directed the respondent-appellant to pay to the appellant-respondent the sum of $61,250, (2) directed him to pay to the appellant-respondent one-half of the cash surrender value of his life insurance policies, and (3) directed that the proceeds from the sale of the marital residence be apportioned 75 percent to the appellant-respondent and 25 percent to the respondent-appellant are stayed pending hearing and determination of the appeal and cross appeal from the judgment on condition that (A) the respondent-appellant's answering brief, including his points of argument on the cross appeal, shall be served and filed on or before April 19, 2006 (see 22 NYCRR 670.8[c][3]), and (B) the respondent-appellant pay the appellant-respondent the sum of $44,000 on or before March 9, 2006, and the motion is otherwise denied; and it is further,

ORDERED that in the event that the marital residence is sold pending hearing and determination of the appeal and cross appeal from the judgment, 50 percent of the proceeds of the sale shall be payable to the appellant-respondent, 25 percent of the proceeds of the sale shall be payable to the respondent-appellant, and 25 percent of the proceeds of the sale shall be held in escrow by the appellant-respondent's attorney; and it is further,

ORDERED that the appellant-respondent's reply brief shall be served and filed on or before May 19, 2006; and it is further,

ORDERED that the respondent-appellant's reply brief shall be served and filed on or before May 30, 2006; and it is further,

ORDERED that in the event the appeal is not perfected on or before March 20, 2006, the court, on its own motion, may vacate the stay granted to the appellant-respondent, or the respondent-appellant may move to vacate that stay, on three days notice; and it is further,

ORDERED that in the event the respondent-appellant's answering brief, including his points of argument on the cross appeal, is not served and filed on or before April 19, 2006, or in the event the respondent-appellant fails to pay the sum of $44,000 to the appellant-respondent on or before March 9, 2006, the court, on its own motion, may vacate the stay granted to the respondent-appellant, or the appellant-respondent may move to vacate that stay, on three days notice.

ADAMS, J.P., SANTUCCI, RIVERA and FISHER, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court