Appellate Division: Second Judicial Department

M68272

E/sl

PETER B. SKELOS, J.P.

MARK C. DILLON

JOHN M. LEVENTHAL

CHERYL E. CHAMBERS, JJ.

2008-01651 In the Matter of Rosemary Toriola, petitioner, v Supreme Court State of New York Appellate Term 2nd and 11th Judicial District, et al., respondents.

DECISION & ORDER ON MOTION

Proceeding pursuant to CPLR article 78 in the nature of mandamus to annul certain determinations of the Appellate Term, Second and Eleventh Judicial Districts. Application by the petitioner pursuant to CPLR 1101 for permission to prosecute the above-entitled proceeding as a poor person. Separate motions by the petitioner for leave to enter a default judgment against the respondents and to enlarge the time to reply to the respondents' answer. Cross motion by the respondent Joseph Kahen and Mehrdad Kahen, inter alia, to dismiss the proceeding and to impose sanctions on the petitioner.

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

ORDERED that the application pursuant to CPLR 1101 for permission to prosecute the above-entitled proceeding as a poor person is denied on the ground that the allegations of merit contained in the petitioner's affidavit in support of the motion fail to establish that the proceeding is not frivolous (see CPLR 1101[a]); and it is further,

ORDERED that in the event that the filing fee has not been paid within 40 days from the date of this order the proceeding shall be dismissed (see CPLR 1101[d]); and it is further,

ORDERED that the motions and the cross motion are held in abeyance in the interim.

SKELOS, J.P., DILLON, LEVENTHAL and CHAMBERS, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court