| MICHELLE L. DUKE V BRIAN A. DUKE |
| Motion No: CA 10-01871 |
| Slip Opinion No: 2010 NY Slip Op 86973(U) |
| Decided on November 3, 2010 |
| Appellate Division, Fourth Department, Motion Decision |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This motion is uncorrected and is not subject to publication in the Official Reports. |
PRESENT: SCUDDER, P.J., MARTOCHE, SMITH, CENTRA, AND FAHEY, JJ.
DOCKET NO. CA 10-01871
| MICHELLE L. DUKE, PLAINTIFF-RESPONDENT, V BRIAN A. DUKE,
DEFENDANT-APPELLANT. |
Appellant having moved, for a stay of all proceedings to enforce an order and judgment of the Supreme Court entered in the Office of the Clerk of the County of Erie on March 25, 2010, pending the hearing and determination of the appeal taken herein,
Now, upon reading and filing the affidavit of Brian A. Duke dated August 24, 2010, the notice of motion with proof of service thereof, the affirmation of Jonathan Schapp, Esq. dated September 16, 2010, and due deliberation having been had thereon,
It is hereby ORDERED that the motion is denied.
Memorandum: Because appellant can obtain an automatic stay (see CPLR 5519 [a] [2]), a discretionary stay is not available pursuant to CPLR 5519 (c) (see Sullivan v Troser Mgt., Inc. 30 AD3d 1118 [2006]; Kightlinger v Kightlinger, 231 AD2d 969 [1996]).
Entered: November 3, 2010
Patricia L. Morgan, Clerk