Appellate Division: Second Judicial Department

M57699

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FRED T. SANTUCCI, J.P.

ANITA R. FLORIO

PETER B. SKELOS

THOMAS A. DICKERSON, JJ.

2007-03886 New York Telephone Company, respondent, v Nassau County, et al., appellants. (Matter No. 1) (Index No. 12986/97) In the Matter of New York Water Service Corporation, respondent, v Nassau County, et al., appellants. (Matter No. 2) (Index No. 12762/97) In the Matter of Long Island Water Corporation, respondent, v Nassau County, et al., appellants. (Matter No. 3) (Index No. 12856/97)

DECISION & ORDER ON MOTION

Motion by the appellants, inter alia, to confirm that an automatic stay pursuant to CPLR 5519(a)(1) is in effect with regard to so much of an order of the Supreme Court, Nassau County, dated April 6, 2007, as authorized the issuance of a deposition subpoena for the Executive Director of the Nassau County Interim Finance Authority, or, in the alternative, to stay enforcement of two subpoenas, both dated June 21, 2007, issued to Richard Luke, Executive Director of the Nassau County Interim Finance Authority, and the Nassau County Interim Finance Authority, pending hearing and determination of the appeal. Cross motion by the respondents New York Telephone Company and Long Island Water Corporation to vacate any automatic stay that is in effect and to dismiss the appeal on the ground, inter alia, that no appeal lies from a nonfinal order in a proceeding pursuant to CPLR article 78.

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

ORDERED that on the court's own motion, the appellants' notice of appeal from so much of the order as decided a motion and cross motion in connection with proceedings pursuant to CPLR article 78 is deemed to be an application for leave to appeal from that portion of the order and leave to appeal is granted (see CPLR 5701[c]); and it is further,

ORDERED that the branch of the motion which is to stay enforcement of two subpoenas, both dated June 21, 2007, issued to Richard Luke, Executive Director of the Nassau County Interim Finance Authority, and the Nassau County Interim Finance Authority is granted, and enforcement of those subpoenas is stayed pending hearing and determination of the appeal on condition that the appeal is perfected on or before August 27, 2007; and it is further,

ORDERED that in the event the appeal is not perfected on or before August 27, 2007, 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; and it is further,

ORDERED that the branch of the cross motion which is to vacate any automatic stay that is in effect is denied as academic in light of the determination of the motion; and it is further,

ORDERED that the cross motion is otherwise denied.

SANTUCCI, J.P., FLORIO, SKELOS and DICKERSON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court