PRESENT: SCUDDER, P. J., MARTOCHE, SMITH, CENTRA, AND FAHEY, JJ.

DOCKET NO. CA 10-02017

DAVID HOME BUILDERS, INC., PLAINTIFF-RESPONDENT, V TARA A. MISIAK AND DR. MATTHEW M. MISIAK, DEFENDANTS-APPELLANTS.

Appellants having moved for a stay of all proceedings to enforce the judgment of the Supreme Court entered in the Office of the Clerk of the County of Erie on June 18, 2010, pending the hearing and determination of the appeal taken herein, and for a 90-day extension of time to perfect the appeal,

Now, upon reading and filing the affidavits of Jeanne M. Vinal, Esq. sworn to September 27, 2010, and October 28, 2010, the notice of motion with proof of service thereof, the affirmations of Jennifer C. Persico, Esq. dated October 10, 2010, and October 29, 2010, and due deliberation having been had thereon,

It is hereby ORDERED that the motion insofar as it seeks a stay pursuant to CPLR 5519 (c) is denied, and

It is further ORDERED that the appeal from the order of the Supreme Court entered in the Office of the Clerk of the County of Erie on June 11, 2010, is deemed to be a valid appeal from the judgment entered June 18, 2010, (see CPLR 5520 [c]), and

It is further ORDERED that the motion insofar as it seeks an extension of time to perfect the appeal is dismissed as premature (see 22 NYRR 1000.13 [f]).

Memorandum Because appellants 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; Kightlinger v Kightlinger, 231 AD2d 969).

Entered: December 14, 2010

Patricia L. Morgan, Clerk