Appellate Division: Second Judicial Department

M82000

E/sl

REINALDO E. RIVERA, J.P.

JOSEPH COVELLO

JOHN M. LEVENTHAL

CHERYL E. CHAMBERS, JJ.

2008-10420 Malina Nealis, appellant, v Kevin Nealis, respondent. (Index No. 07-4602)

DECISION & ORDER ON MOTION

Motion by the appellant to stay enforcement of so much of an order of the Supreme Court, Orange County, dated September 30, 2008, as directed the appellant to pay use and occupancy for the marital premises to the receiver and directed the receiver to pay the expenses of the marital residence out of the money paid for use and occupancy, pending hearing and determination of an appeal from the order.

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

ORDERED that on the court's own motion, the appeal from so much of the order as directed the appellant to pay use and occupancy for the marital premises to the receiver and directed the receiver to pay the expenses of the marital residence out of the money paid for use and occupancy is dismissed on the ground that no appeal lies as of right from a portion of an order that is not the result of a motion made on notice (see CPLR 5701), and we decline to grant leave to appeal, without prejudice to moving in the Supreme Court, Orange County, to vacate that portion of the order; and it is further,

ORDERED that the motion is denied.

RIVERA, J.P., COVELLO, LEVENTHAL and CHAMBERS, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court