Appellate Division: Second Judicial Department

M95648

S/sl

A. GAIL PRUDENTI, P.J.

REINALDO E. RIVERA

ANITA R. FLORIO

HOWARD MILLER, JJ.

2009-09604 Walter Schwartz, respondent, v Michele Farkas Miltz, appellant. (Index No. 11127/04)

DECISION & ORDER ON MOTION

On the court's own motion, it is

ORDERED that its decision and order on motion dated December 3, 2009, in the above-entitled case is recalled and vacated, and the following decision and order on motion is substituted therefor:

Motion by the appellant to direct Anthony Mascolo, Esq., to maintain in escrow the money that he was holding in escrow pursuant to a stipulation between the parties pending hearing and determination of an appeal from a decision of the Supreme Court, Nassau County, entered September 30, 2009, or, in the event that the funds have been disbursed, restraining the plaintiff and all acting on his behalf from transferring, spending, hypothecating, or diminishing the funds which have been released.

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

ORDERED that on the court's own motion, the notice of appeal from the decision entered September 30, 2009 is deemed to be a premature notice of appeal from a judgment of the same court entered October 19, 2009 (see CPLR 5520[c]); and it is further,

ORDERED that the motion is granted to the extent that the plaintiff and all acting on his behalf are restrained from transferring, spending, hypothecating, or diminishing the funds which have been released, pending hearing and determination of the appeal on condition that the appeal is perfected on or before January 4, 2010, and the motion is otherwise denied, as academic; and it is further,

ORDERED that in the event the appeal is not perfected on or before January 4, 2010, the court, on its own motion, may vacate the stay, or the respondent may move to vacate the stay, on three days notice.

PRUDENTI, P.J., RIVERA, FLORIO and MILLER, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court