Appellate Division: Second Judicial Department

M250145

E/afa

WILLIAM F. MASTRO, J.P.

SHERI S. ROMAN

COLLEEN D. DUFFY

VALERIE BRATHWAITE NELSON, JJ.

2018-04458 Matter of Nancy Scherer, appellant, v Town of Cortlandt, et al., respondents. (Index No. 53882/17)

DECISION & ORDER ON MOTION

Motion by the appellant to enjoin the respondent New York SMSA Limited Partnership, or anyone acting on its behalf, from taking any physical steps at the location of the proposed cellular telephone tower in furtherance of installation of the tower, pending hearing and determination of an appeal from a judgment of the Supreme Court, Westchester County, dated April 6, 2018. Separate motion by the appellant to strike the affidavit of Robert Breyer filed by the respondent New York SMSA Limited Partnership in opposition to her motion for an injunction and to strike any arguments by the respondent New York SMSA Limited Partnership in opposition to her motion concerning the availability of emergency services.

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

ORDERED that the motion for an injunction is granted and the respondent New York SMSA Limited Partnership, or anyone acting on its behalf, are enjoined from taking any physical steps, including site preparation and construction, at the location of the proposed cellular telephone tower in furtherance of installation of the tower pending hearing and determination of the appeal on condition that the appellant (1) perfect the appeal on or before June 14, 2018, and (2) post an undertaking with corporate surety in the office of the Clerk of the Supreme Court, Westchester County, in a sum to be fixed by the Supreme Court, Westchester County, in terms that if the judgment appealed from, or any part of it, is affirmed, the surety will indemnify the respondent New York SMSA Limited Partnership if it is ultimately determined that the respondent New York SMSA Limited Partnership sustained a loss due to the injunction; and it is further,

ORDERED that the matter is remitted to the Supreme Court, Westchester County, to fix the amount of the undertaking in accordance herewith; the appellant shall file the undertaking within 15 days after service upon it of a copy of the order of the Supreme Court, Westchester County, fixing the amount thereof; and it is further,

ORDERED that in the event the appeal is not perfected on or before June 14, 2018, or the undertaking is not posted in accordance with this decision and order on motion, the Court, on its own motion, may vacate the injunction, without further notice, or the respondents may move to vacate the injunction, on three days notice; and it is further,

ORDERED that the motion to strike the affidavit of Robert Breyer and certain arguments in opposition to the appellant's motion for an injunction is denied.

MASTRO, J.P., ROMAN, DUFFY and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court