Appellate Division: Second Judicial Department

M54868

S/sl

A. GAIL PRUDENTI, P.J.

ANITA R. FLORIO

GABRIEL M. KRAUSMAN

REINALDO E. RIVERA, JJ.

2004-10083, 2005-07150 Corey McKibbin, appellant, v Susan Jenkin, as preliminary executor of estate of Linda McKibbin, respondent. (Index No. 21601-02)

DECISION & ORDER ON MOTION

On the court's own motion, it is

ORDERED that its decisions and orders on motion dated March 15, 2006, and May 14, 2007, in the above-entitled case are recalled and vacated, and the following decision and order is substituted therefor:

Motion by the appellant on appeals from a decision of the Supreme Court, Suffolk County, dated October 19, 2004, and an order of the same court dated July 12, 2005, to stay enforcement of the order dated July 12, 2005, pending hearing and determination of the appeals. By decision and order on motion of this court dated August 16, 2005, the appellant was directed to make an application to the Surrogate's Court for the appointment of a personal representative for the deceased defendant former wife (see CPLR 1015[a]; 1021), and the appeals and the motion were held in abeyance pending the appointment of a personal representative. A personal representative has now been appointed.

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

ORDERED that Susan Jenkin, as preliminary executor of the estate of Linda McKibbin, is substituted for the deceased respondent Linda McKibbin and the caption has been amended accordingly; and it is further,

ORDERED that on the court's own motion the appeal from the decision (Appellate Division Docket No. 2004-10083) is 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 the branch of the motion which is to stay the entry or enforcement of any judgment to be entered upon the order dated July 12, 2005, is granted, and pending hearing and determination of the appeal entry or enforcement of any judgment entered upon the order dated July 12, 2005, is stayed, on condition that the appeal is perfected on or before April 17, 2006; and it is further,

ORDERED that in the event the appeal is not perfected on or before April 17, 2006, the court, on its own motion, may vacate the stay, or the respondent may move to vacate the stay, on three days notice; and it is further,

ORDERED that the motion is otherwise denied as academic.

PRUDENTI, P.J., FLORIO, KRAUSMAN and RIVERA, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court