Appellate Division: Second Judicial Department

M231455

E/sl

REINALDO E. RIVERA, J.P.

SANDRA L. SGROI

ROBERT J. MILLER

VALERIE BRATHWAITE NELSON, JJ.

2017-03676 Israel Kashipour, et al., respondents, v Wilmington Savings Fund Society, FSB, etc., appellant. (Index No. 605756/15)

ORDER TO SHOW CAUSE

Motion by Wilmington Savings Fund Society, FSB, to stay enforcement of a judgment of the Supreme Court, Nassau County, entered April 6, 2017, and to enjoin, inter alia, the sale, conveyance, or encumbrance of the subject premises, pending hearing and determination of an appeal from the judgment.

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

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

ORDERED that on the Court's own motion, the parties are directed to show cause why an order should or should not be made and entered (1) dismissing the appeal on the ground that no appeal lies as of right from a "final . . . judgment . . . entered subsequent to an order of the Appellate Division which disposes of all the issues in the action" (CPLR 5701[a][1]), and leave to appeal has not been granted, and (2) imposing sanctions and/or costs, if any, including appellate counsel fees, against Wilmington Savings Fund Society, FSB, pursuant to 22 NYCRR 130-1.1(c) as this Court may deem appropriate, by filing in the office of the Clerk of this Court an original and four copies of their respective affirmations or affidavits on those issues, including the amounts of legal fees incurred by Israel Kashipour and Tara Chayut Kashipour in connection with the motion, inter alia, for a stay, and by serving one copy of the affirmations or affidavits on each other, on or before June 26, 2017; and it is further,

ORDERED that the Clerk of this Court, or her designee, is directed to serve a copy of this order to show cause upon the parties by regular mail.

On a prior appeal in the above-entitled action, this Court reversed an order of the Supreme Court, Nassau County, granted a motion by Israel Kashipour and Tara Chayut Kashipour for summary judgment on the complaint, and remitted the matter to the Supreme Court for the entry of a judgment canceling and discharging of record the subject mortgage (see Kashipour v Wilmington Sav. Fund Socy., FSB, 144 AD3d 985). Subsequently, the Supreme Court entered judgment canceling and discharging of record the subject mortgage, and the defendant filed a notice of appeal. The conduct of Wilmington Savings Fund Society, FSB, in filing a notice of appeal from the judgment entered subsequent to an order of the Appellate Division which disposed of all the issues in the above-entitled action and in making a motion to stay enforcement of the judgment pending appeal, may constitute frivolous conduct in the event this Court determines that no appeal lies as of right from such judgment and there are no reviewable issues to be raised on an appeal from the judgment (see 22 NYCRR 130-1.1).

RIVERA, J.P., SGROI, MILLER and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court