Appellate Division: Second Judicial Department

M114177

P/sl

JOSEPH COVELLO, J.P.

THOMAS A. DICKERSON

LEONARD B. AUSTIN

ARIEL E. BELEN, JJ.

2010-07320 In the Matter of F & M Concrete Corporation. Manuel Barros, respondent; Fernando Carvalho, et al., appellants. (Index No. 2525/09)

DECISION & ORDER ON MOTION

On the Court's own motion, its decision and order on motion in the above-entitled matter, dated August 11, 2010, is recalled and vacated, and the following decision and order on motion is substituted therefor:

Motion by Fernando Carvalho and F & M Concrete Corporation for leave to appeal to this Court from an order of the Supreme Court, Rockland County, dated June 11, 2010, and to stay all proceedings in the above-entitled proceeding, pending hearing and determination of the appeal.

Upon the papers filed in support of the motion and no papers having been filed in opposition or in relation thereto, it is

ORDERED that the motion is granted; and it is further,

ORDERED that all proceedings in the above-entitled proceeding are stayed pending hearing and determination of the appeal; and it is further,

ORDERED that the appeal of the Manuel Barros, purportedly taken as of right from the order dated June 11, 2010, is dismissed, without costs or disbursements, on the ground that the order is not appealable as of right, and leave to appeal therefrom has not been granted to Manuel Barros (see CPLR 5701[a][2]); and it is further,

ORDERED that the appellants' time to perfect the appeal in accordance with 22 NYCRR 670.8(e)(1) shall be computed from August 11, 2010, the date their motion for leave to appeal was granted.

COVELLO, J.P., DICKERSON, AUSTIN and BELEN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court