Appellate Division: Second Judicial Department

M238581

E/sl

JOHN M. LEVENTHAL, J.P.

BETSY BARROS

VALERIE BRATHWAITE NELSON

LINDA CHRISTOPHER, JJ.

2017-04167 HSBC Bank, USA, National Association, as trustee for the holders of the Ellington Loan Acquisition Trust 2007-1, etc., respondent, v Vishnu Sawh, appellant, et al., defendants. (Index No. 704354/13)

DECISION & ORDER ON MOTION

Motion by the appellant, inter alia, to stay the foreclosure sale of the subject premises, pending hearing and determination of an appeal from an order of the Supreme Court, Queens County, entered November 4, 2016. By order to show cause dated July 5, 2017, inter alia, the parties were directed to show cause before this Court why an order should or should not be made and entered dismissing the appeal from the order entered November 4, 2016, on the ground that the right of direct appeal from the order terminated upon entry of a judgment of the Supreme Court, Queens County, entered February 2, 2017, and the appellant's motion was held in abeyance in the interim. Motion by the appellant, in effect, pursuant to CPLR 5520(c) to deem the notice of appeal from the order to be a premature notice of appeal from the judgment to the extent that the judgment brings up for review the order, to deem the record and the appellant's brief filed in connection with the appeal from the order to be filed in connection with the judgment, and to limit the issues raised on the appeal from the judgment to the issues raised in the briefs filed in connection with the appeal from the order. Application by the respondent pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to serve and file a brief.

Now, upon the order to show cause and the papers filed in response thereto, upon the papers filed in support of the motion, inter alia, to stay the foreclosure sale and the papers filed in opposition thereto, and upon the papers filed in support of the motion, inter alia, in effect, pursuant to CPLR 5520(c) to deem the notice of appeal from the order to be a premature notice of appeal from the judgment to the extent that the judgment brings up for review the order and no papers having been filed in opposition or in relation thereto, it is

ORDERED that the motion to dismiss the appeal is denied; and it is further,

ORDERED that the motion, inter alia, in effect, pursuant to CPLR 5520(c) to deem the notice of appeal from the order to be a premature notice of appeal from the judgment to the extent that the judgment brings up for review the order is granted, the notice of appeal from the order is deemed to be a premature notice of appeal from the judgment to the extent that the judgment brings up for review the order, the record and the appellant's brief filed in connection with the appeal from the order are deemed to be filed in connection with the judgment, the issues raised on the appeal from the judgment are limited to the issues raised in the briefs filed in connection with the appeal from the order, and on or before November 1, 2017, the appellant shall serve and file a supplemental record containing the judgment; and it is further,

ORDERED that the motion, inter alia, to stay the foreclosure sale is granted to the extent that the foreclosure sale of the subject premises, located at 135-32 114th Place, South Ozone Park, NY 11420, is stayed pending hearing and determination of the appeal, and the motion is otherwise denied; and it is further,

ORDERED that the application is granted, the respondent's time to serve and file a brief is enlarged until December 1, 2017, and the respondent's brief shall be served and filed on or before that date.

LEVENTHAL, J.P., BARROS, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court