Appellate Division: Second Judicial Department

M251801

E/sl

ALAN D. SCHEINKMAN, P.J.

COLLEEN D. DUFFY

BETSY BARROS

FRANCESCA E. CONNOLLY, JJ.

2016-10352 Reverse Mortgage Solutions, Inc., respondent, v Antonio Fattizzo, appellant, et al., defendants. (Index No. 66269/14)

DECISION & ORDER ON MOTION

Motion by the appellant to stay the foreclosure sale of the subject premises, pending hearing and determination of an appeal from an order of the Supreme Court, Suffolk County, dated September 19, 2016. By order to show cause dated April 18, 2018, the parties were directed to show cause before this Court why an order should or should not be made and entered dismissing the appeal on the ground that the right of direct appeal from the order terminated upon entry of a judgment in the above-entitled action on July 31, 2017, and the appellant's motion was held in abeyance in the interim. Separate motion by the respondent to dismiss the appeal on the ground that the order was superseded by the judgment. Separate motion by the appellant 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 parties' briefs filed in connection with the appeal from the order to be filed in connection with the appeal from the judgment, and for leave to serve and file a supplemental record containing the judgment.

Now, upon the order to show cause and no papers filed in response thereto, upon the papers filed in support of the appellant's motion to stay the foreclosure sale of the subject premises and the papers filed in opposition thereto, upon the papers filed in support of the respondent's motion and the papers filed in opposition thereto, and upon the papers filed in support of the appellant's motion, inter alia, pursuant to CPLR 5520(c) and no papers having been filed in opposition or in relation thereto, it is

ORDERED that the appellant's motion 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 parties' briefs filed in connection with the appeal from the order to be filed in connection with the appeal from the judgment, and for leave to serve and file a supplemental record containing the judgment is granted and on or before July 19, 2018, the appellant shall serve and file a supplemental record containing the judgment; and it is further,

ORDERED that the motion to dismiss the appeal dated April 18, 2018, initiated by the order to show cause, and the respondent's motion are denied as academic; and it is further,

ORDERED that the appellant's motion to stay the foreclosure sale of the subject premises is granted and the foreclosure sale of the subject premises, located at 39 Pinetop Drive, Shirley, New York, is stayed, pending hearing and determination of the appeal.

SCHEINKMAN, P.J., DUFFY, BARROS and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court