PRESENT: SMITH, J.P., CENTRA, FAHEY, PERADOTTO, AND CARNI, JJ.

DOCKET NO. CA 11-02014

MT. HOPE BUSINESS ASSOCIATION, INC., AND UPPER MT. HOPE NEIGHBORHOOD ASSOCIATION, BY ITS PRESIDENT, DANIEL HURLEY, PETITIONERS-APPELLANTS, V ZONING BOARD OF APPEALS OF THE CITY OF ROCHESTER, ROCHESTER CITY COUNCIL, ROCHESTER CITY PLANNING COMMISSION, CITY OF ROCHESTER, PATRICK G. BENFANTE, PAUL DEAN, JR., 1286 MT. HOPE AVENUE, LLC, TIM DONUT (U.S.) LIMITED, INC., RESPONDENTS-RESPONDENTS.

Petitioners having moved for a preliminary injunction and a stay, pursuant to CPLR 5518 and 5519 (c), pending the hearing and determination of the appeal taken herein from an order and judgment of Supreme Court entered in the Office of the Clerk of the County of Monroe on September 30, 2011, a stay pursuant to CPLR 7805, and for other relief, and

Respondents Patrick G. Benfante, Paul Dean, Jr., and 1286 Mt. Hope Avenue, LLC, having cross-moved to dismiss the appeal on the ground that it is moot,

Now, upon reading and filing the affirmation of Alan J. Knauf, Esq., dated October 3, 2011, the affidavit of Reuben Ortenberg, Esq., sworn to October 7, 2011, the notice of motion with proof of service thereof, and the affirmation of Amy L. Reichhart, Esq., dated October 7, 2011, and due deliberation having been had thereon,

It is hereby ORDERED that petitioners' motion is denied, and

It is further ORDERED that respondents Patrick G. Benfante, Paul Dean, Jr., and 1286 Mt. Hope Avenue, LLC's cross motion is denied, with leave to renew at oral argument.

Entered: October 26, 2011

Patricia L. Morgan, Clerk