Appellate Division: Second Judicial Department

M60869

T/sl

DAVID S. RITTER, J.P.

FRED T. SANTUCCI

ROBERT A. LIFSON

MARK C. DILLON, JJ.

2007-08618 Alexander Ekstra, respondent, v Melissa Ekstra, appellant. (Index No. 05-22283)

DECISION & ORDER ON MOTION

Motion by the appellant to stay enforcement of an order of the Supreme Court, Westchester County, entered October 2, 2007, pending hearing and determination of an appeal therefrom. Cross application by the respondent to strike stated portions of the motion papers, and the exhibits thereto, on the ground that they contain or refer to matter dehors the record.

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

ORDERED that on the court's own motion, the notice of appeal from a decision of the Supreme Court, Westchester County, dated September 4, 2007, is deemed to be a premature notice of appeal from the order entered October 2, 2007 (see CPLR 5520[c]); and it is further,

ORDERED that the motion is granted and enforcement of the order entered October 2, 2007, is stayed pending hearing and determination of the appeal on condition that the appeal is perfected on or before November 9, 2007; and it is further,

ORDERED that in the event the appeal is not perfected on or before November 9, 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 cross application is granted, and the portions of the motion papers, and the exhibits thereto, which contain or refer to the report of the forensic examiner filed in the above-entitled action are stricken, and have not been considered in the determination of this motion, without prejudice to the appellant making a motion to enlarge the record on appeal to include the report, if she be so advised.

RITTER, J.P., SANTUCCI, LIFSON and DILLON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court