Appellate Division: Second Judicial Department

M85104

S/cb

PETER B. SKELOS, J.P.

MARK C. DILLON

DANIEL D. ANGIOLILLO

RANDALL T. ENG, JJ.

2008-11560, 2009-03269 Susan Marr, respondent, v Clearview Gardens Second Corporation, appellant. (Index No. 24124/08)

DECISION & ORDER ON MOTION

On the court's own motion, it is

ORDERED that its decision and order on motion dated January 15, 2009, in the above-entitled case is recalled and vacated, and the following decision and order on motion is substituted therefor:

Motion by Clearview Gardens Second Corporation, inter alia, for leave to appeal to this court from two orders of the Supreme Court, Queens County, dated September 30, 2008, and, October 22, 2008, respectively, and, in effect, to stay enforcement of certain directives contained in the order dated October 22, 2008, pending hearing and determination of the appeal.

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

ORDERED that the branch of the motion which is for leave to appeal is granted; and it is further,

ORDERED that the branch of the motion which is, in effect, to stay enforcement of certain directives contained in the order dated October 22, 2008, is granted, and the directives that (1) the appellant conduct "a poll . . . as to the usage of the space above the individual apartments or [make] some showing that [the respondent] isn't being selected because of an unfortunate fire in her apartment" and (2) the appellant is enjoined from commencing any other action or proceeding unless it was before Justice Hart are stayed, pending hearing and determination of the appeal or pending determination of the underlying order to show cause by the Supreme Court, Queens County, whichever occurs first; and it is further,

ORDERED that the motion is otherwise denied.

SKELOS, J.P., DILLON, ANGIOLILLO and ENG, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court