Appellate Division: Second Judicial Department

M126222

E/sl

REINALDO E. RIVERA, J.P.

RUTH C. BALKIN

L. PRISCILLA HALL

JEFFREY A. COHEN, JJ.

2011-07274 Frank R. Nicodemus, appellant, v Elsa A. Nicodemus, respondent. (Index No. 3222/05)

DECISION & ORDER ON MOTION

Motion by the appellant on an appeal from a judgment of the Supreme Court, Dutchess County, dated June 24, 2011, to stay enforcement of those portions of the judgment which directed the court appointed receiver, Donald Cappillino, to sell certain of the parties' real property, personal property, and vehicles, and awarded the respondent certain real property, personal property, and vehicles, pending hearing and determination of the appeal, for an expedited briefing schedule, and for a preference in the calendaring of the appeal.

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

ORDERED that the motion is granted to the extent that, pending hearing and determination of the appeal, (1) those portions of the judgment which directed the court appointed receiver, Donald Cappillino, to sell certain of the parties' real property, personal property, and vehicles, is stayed, except that the receiver may proceed with the sale of the premises located at 254 Titusville Road, LaGrange, for the sum of 240,000, to the buyer Gold's Gym, with the proceeds of the sale to be held in escrow by the receiver, and (2) the parties are stayed from selling, encumbering, transferring or disposing of real property, personal property, and vehicles awarded to them as separate property, and/or over which they have possession or control, except the respondent shall be permitted to operate the parties' automobile restoration business and make expenditures in the regular course of business provided that no action taken by the respondent shall frustrate the distribution of 30 % of the business to the appellant, on condition that the appeal is perfected on or before November 21, 2011, and the motion is otherwise denied; and it is further,

ORDERED that in the event the appeal is not perfected on or before November 21, 2011, the Court, on its own motion, may vacate the stay, or the respondent may move to vacate the stay, on three days notice.

RIVERA, J.P., BALKIN, HALL and COHEN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court