Appellate Division: Second Judicial Department

M108967

E/sl

FRED T. SANTUCCI, J.P.

RUTH C. BALKIN

JOHN M. LEVENTHAL

LEONARD B. AUSTIN, JJ.

2010-08222 In the Matter of Nicholas Witkowich, appellant, v Zoning Board of Appeals of Town of Yorktown, et al., respondents. (Index No. 10-2910)

DECISION & ORDER ON MOTION

Motion by the appellant to enjoin the respondent Andrew Sabo, or his agents or employees, from building a certain proposed structure, or from taking any other action in connection with the building of the proposed structure, including but not limited to excavation, at the premises located at 1920 Maple Court, Yorktown Heights, New York, pursuant to a building permit issued on January 8, 2010, pending hearing and determination of an appeal from an order of the Supreme Court, Westchester County, entered August 19, 2010.

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

ORDERED that the motion is granted, and the respondent Andrew Sabo, or his agents or employees, are enjoined from building the proposed structure, or from taking any other action in connection with the building of the proposed structure, including but not limited to excavation, at the premises located at 1920 Maple Court, Yorktown Heights, New York, pursuant to the building permit issued on January 8, 2010, pending hearing and determination of the appeal on condition that (1) the appeal is perfected on or before October 29, 2010, and (2) the appellant post an undertaking with corporate surety in the office of the Clerk of the Supreme Court, Westchester County, in a sum to be fixed by the Supreme Court, Westchester County, in terms that if the order appealed from, or any part of it, is affirmed, the surety will indemnify the respondent Andrew Sabo if it is ultimately determined that the respondent Andrew Sabo sustained a loss due to the injunction; and it is further,

ORDERED that the matter is remitted to the Supreme Court, Westchester County, to fix the amount of the undertaking in accordance herewith; the appellant shall file the undertaking within 15 days after service upon it of a copy of the order of the Supreme Court, Westchester County, fixing the amount thereof; and it is further,

ORDERED that in the event that the appellant does not perfect the appeal on or before October 29, 2010, or fails to post the undertaking within 15 days after service upon him of a copy of the order of the Supreme Court, Westchester County, fixing the amount thereof, the court, on its own motion, may vacate the stay, or the respondents may move to vacate the stay, on three days notice.

SANTUCCI, J.P., BALKIN, LEVENTHAL and AUSTIN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court