Appellate Division: Second Judicial Department

M70471

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HOWARD MILLER, J.P.

MARK C. DILLON

RUTH C. BALKIN

CHERYL E. CHAMBERS, JJ.

2007-09349 Barbara Merget, et al., appellants, v Westbury Properties, LLC, et al., respondents. (Index No. 10359/05)

DECISION & ORDER ON MOTION

Motion by the appellants on an appeal from a judgment of the Supreme Court, Suffolk County, entered April 29, 2008, inter alia, to enjoin the respondents or anyone acting on their behalf from entering the subject property, removing any shrubs, trees, fencing, curbing or driveway material, or erecting any fencing, signs or anything else on the subject property, pending hearing and determination of the appeal. Application by the appellants pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to perfect the appeal.

Upon the papers filed in support of the motion and the 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 same court entered September 7, 2007, is deemed to be a premature notice of appeal from the judgment (see CPLR 5520[c]); and it is further,

ORDERED that the motion is granted to the extent that the respondents or anyone acting on their behalf are enjoined from entering the subject property, removing any shrubs, trees, fencing, curbing or driveway material, or erecting any fencing, signs or anything else on the subject property, pending hearing and determination of the appeal, on condition that on or before June 11, 2008, post an undertaking with corporate surety in the sum of $12,000 in the office of the Clerk of the Supreme Court, Suffolk County, in terms that if the judgment appealed from, or any part of it, is affirmed, the surety will indemnify the respondents if it is ultimately determined that the respondents sustained a loss due to the conduct of the appellants during the period that the stay was in effect, and the motion is otherwise denied; and it is further,

ORDERED that if the above condition is not complied with, the court on its own motion may vacate the stay or the respondents may move to vacate the stay on three days notice; and it is further,

ORDERED that the application is granted, the appellants' time to perfect the appeal is enlarged until July 14, 2008, and the record or appendix on the appeal and the appellants' brief must be served and filed on or before that date; and it is further,

ORDERED that no further enlargement of time shall be granted.

MILLER, J.P., DILLON, BALKIN and CHAMBERS, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court