Appellate Division: Second Judicial Department

M84030

E/sl

REINALDO E. RIVERA, J.P.

ROBERT A. SPOLZINO

DANIEL D. ANGIOLILLO

RUTH C. BALKIN, JJ.

2009-02059, 2009-02060 In the Matter of Edward Just, respondent, v Brenda Tompkins-Just, appellant (Docket No. V-1442/09)

DECISION & ORDER ON MOTION

Motion by Brenda Tompkins-Just pursuant to CPLR 5704 to vacate an order of the Family Court, Westchester County, dated January 13, 2009, or, in the alternative, for leave to appeal to this court from an order of the same court dated February 19, 2009, and, in effect, to stay enforcement of the order dated January 13, 2009, and to remand the subject child to her care and custody pending hearing and determination of the appeal from the order dated February 19, 2009.

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

ORDERED that the branch of the motion which is pursuant to CPLR 5704 to vacate the order dated February 19, 2009 (Appellate Division Docket No. 2009-02059), is denied; and it is further,

ORDERED that the branch of the motion which is for leave to appeal to this court from the order dated January 28, 2009 (Appellate Division Docket No. 2009-02060), is granted; and it is further,

ORDERED that the branch of the motion which is, in effect, to stay enforcement of the order dated January 13, 2009, and to remand the subject child to Brenda Tompkins-Just's care and custody pending hearing and determination of the appeal from the order dated February 19, 2009, is granted, and enforcement of the order dated January 13, 2009, is stayed and care and custody of the subject child is remanded to Brenda Tompkins-Just pending hearing and determination of the appeal or a determination, after a hearing, by the Family Court, Westchester County, of the underlying petition, on condition that the maternal grandmother continue to reside in the household with Brenda Tompkins-Just and the subject child, and Brenda Tompkins-Just wholly abstain from alcohol use and refrain from operating a motor vehicle while the subject child is a passenger; and it is further,

ORDERED that in the event that the foregoing conditions are not complied with, the court, on its own motion, may vacate the stay, or the respondent or the attorney for the child may move to vacate the stay, on three days notice; and it is further,

ORDERED that the parties shall advise the court expeditiously when the Family Court, Westchester County, determines the underlying petition.

RIVERA, J.P., SPOLZINO, ANGIOLILLO and BALKIN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court