Appellate Division: Second Judicial Department

M249638

E/sl

RUTH C. BALKIN, J.P.

ROBERT J. MILLER

VALERIE BRATHWAITE NELSON

LINDA CHRISTOPHER, JJ.

2015-09876 Fulton Holding Group, LLC, respondent, v Lindsay Lindoff, etc., et al., defendants, 1068 Fulton USA, LLC, appellant. (Index No. 504973/14)

DECISION & ORDER ON MOTION

2017-01102

Fulton Holding Group, LLC, respondent,

v Lindsay Lindoff, etc., et al., defendants,

Fulton Holdings USA, LLC, nonparty-appellant.

(Index No. 504973/14)

2017-08883

Fulton Holding Group, LLC, plaintiff-respondent,

v Lindsay Lindoff, etc., et al., defendants-respondents,

1068 Fulton USA, LLC, defendant-appellant,

Fulton Holdings USA, LLC, nonparty-appellant.

(Index No. 504973/14)

Motion by 1068 Fulton USA, LLC, on appeals from two orders of the Supreme Court, Kings County, dated August 28, 2015, and November 29, 2016, respectively, and a judgment of the same court dated July 11, 2017, to stay enforcement of the order dated August 28, 2015, and the judgment, and to stay the sale of the subject premises, pending hearing and determination of the appeals from the order dated August 28, 2015, and the judgment, and to consolidate the appeals from the order dated August 28, 2015, and the judgment. Separate motion by 1068 Fulton USA, LLC, to consolidate the appeals from the order dated August 28, 2015, and the judgment, and for leave to serve and file a supplemental record containing the judgment and the notice of appeal from the judgment. Cross motion by Fulton Holding Group, LLC, to dismiss the appeal from the order dated August 28, 2015, on the ground that the right of direct appeal therefrom terminated upon entry of the judgment and to dismiss the appeal by 1068 Fulton USA, LLC, from the judgment on the ground that no appeal lies from a judgment issued upon the default of an appealing party, or, in the alternative, for leave to serve and file a supplemental brief.

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

ORDERED that the branch of the cross motion which is to dismiss the appeal from the order dated August 28, 2015, is granted, and that appeal is dismissed, without costs or disbursements (see Matter of Aho, 39 NY2d 241); and it is further,

ORDERED that on the Court's own motion, pursuant to CPLR 5520(c), the notice of appeal from the order dated November 29, 2016, is deemed to be a premature notice of appeal from the judgment to the extent the judgment brings that order up for review, and that appeal will proceed under Appellate Division Docket No. 2017-08883; and it is further,

ORDERED that on the Court's own motion, the records and briefs filed in connection with the appeals from the orders are deemed to be filed in connection with the appeals from the judgment; and it is further,

ORDERED that the branch of the cross motion which is to dismiss the appeal by 1068 Fulton USA, LLC, from the judgment is denied (see James v Powell, 19 NY2d 249, 256 n.3); and it is further,

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

ORDERED that the branch of the motion which for a stay is granted to the extent that enforcement of the judgment and the sale of the subject premises are stayed pending hearing and determination of the appeals from the judgment, and the branch of the motion which for a stay is otherwise denied; and it is further,

ORDERED that the branches of the motions which are to consolidate the appeals from the order dated August 28, 2015, and the judgment are denied as academic; and it is further,

ORDERED that the branch of the motion which is for leave to serve and file a supplemental record is granted to the extent that on or before May 24, 2018, 1068 Fulton USA, LLC, and Fulton Holdings USA, LLC, shall serve and file a supplemental joint record containing the judgment and the notices of appeal from the judgment.

BALKIN, J.P., MILLER, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court