Appellate Division: Second Judicial Department

M164638

E/sl

PETER B. SKELOS, J.P.

RUTH C. BALKIN

JOHN M. LEVENTHAL

SANDRA L. SGROI, JJ.

2013-09473 New York State Nurses Association, et al., respondents, v New York State Department of Health, et al., appellants. (Index No. 5814/13)

DECISION & ORDER ON MOTION

Motion by the appellants New York State Department of Health and Nirav R. Shah to stay enforcement of an order of the Supreme Court, Kings County, dated October 11, 2013, pending hearing and determination of an appeal therefrom. Cross motion by the respondents, inter alia, pursuant to CPLR 5519(c) to vacate any automatic stay in effect pursuant to CPLR 5519(a).

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

ORDERED that on the Court's own motion, the notice of appeal also is treated as an application for leave to appeal from so much of the order dated October 11, 2013, as constitutes an order in a proceeding pursuant to CPLR article 78 and leave to appeal is granted (see CPLR 5701[b][1]); and it is further,

ORDERED that the motion is granted to the extent that so much of the order dated October 11, 2013, as declares that 10 NYCRR 401.3(g) is unconstitutional is suspended (see Pokoik v Dept. of Health Servs., 220 AD2d 13, 16), pending hearing and determination of the appeal on condition that the appeal is perfected on or before December 2, 2013, and the motion is otherwise denied; and it is further,

ORDERED that in the event the appeal is not perfected on or before December 2, 2013, the Court, on its own motion, may vacate the foregoing provision, without further notice, or the respondents may move to vacate the foregoing provision, on three days notice; and it is further,

ORDERED that the cross motion is denied as unnecessary as no automatic stay is in effect (see State of New York v Town of Haverstraw, 219 AD2d 64).

SKELOS, J.P., BALKIN, LEVENTHAL and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court