Matter of State of New York v McC. (Anonymous)
Motion No: 2013-09407
Slip Opinion No: 2013 NY Slip Op 92700(U)
Decided on November 27, 2013
Appellate Division, Second Department, Motion Decision
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This motion is uncorrected and is not subject to publication in the Official Reports.


Supreme Court of the State of New York

Appellate Division: Second Judicial Department

M165668

E/sl

PETER B. SKELOS, J.P.

THOMAS A. DICKERSON

JEFFREY A. COHEN

SYLVIA O. HINDS-RADIX, JJ.

2013-09407

In the Matter of State of New York, appellant,

v Claude McC. (Anonymous), respondent.

(Index No. 38/11)

DECISION & ORDER ON MOTION

Motion by the respondent to vacate any automatic stay of the release of the respondent which is in effect pursuant to CPLR 5519(a)(1), pending hearing and determination of an appeal from an order of the Supreme Court, Kings County, dated October 7, 2013, and for a preference in the calendaring of the appeal. Motion by the appellant to stay the respondent's release and to allow the appellant to retain custody of the respondent pursuant to Mental Hygiene Law § 10.6(h), pending hearing and determination of the appeal from the order dated October 7, 2013.

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

ORDERED that the branch of the respondent's motion which is to vacate any automatic stay of the release of the respondent is denied as unnecessary as no automatic stay of the release of the respondent is in effect (see State of New York v Town of Haverstraw, 219 AD2d 64); and it is further,

ORDERED that the appellant's motion is granted, and the appellant is authorized to continue to retain custody of the respondent in accordance with the order of the Supreme Court, Kings County, dated January 8, 2013, pending hearing and determination of the appeal on condition that the appeal is perfected on or before December 27, 2013; and it is further,

ORDERED that in the event the appeal is not perfected on or before December 27, 2013, the Court, on its own motion, may vacate the stay, without further notice, or the respondent may move to vacate the stay, on three days notice; and it is further,

ORDERED that the respondent shall serve and file a brief, if any, on or before January 27, 2014; and it is further,

ORDERED that the appellant shall serve and file a reply brief, if any, on or before February 7, 2014; and it is further,

ORDERED that the branch of the respondent's motion which is for a preference is granted and the appeal will be calendared expeditiously.

SKELOS, J.P., DICKERSON, COHEN and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court