Appellate Division: Second Judicial Department

M75229

S/sl

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

Appeal by the plaintiffs from a judgment of the Supreme Court, Suffolk County, entered April 29, 2008. By decision and order on motion dated May 15, 2008, as amended August 11, 2008, this court granted the appellants motion, 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, on condition, among other things, that on or before August 25, 2008, the appellants 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 injunction was in effect. By letter dated August 26, 2008, the respondents have advised the court that the undertaking has not been posted.

Now, upon the court's own motion, it is

ORDERED that the injunction granted by the decision and order on motion of this court dated May 15, 2008, as amended August 11, 2008, is vacated forthwith.

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

ENTER:

James Edward Pelzer

Clerk of the Court