Appellate Division: Second Judicial Department

M257777

E/mm

LEONARD B. AUSTIN, J.P.

JEFFREY A. COHEN

COLLEEN D. DUFFY

ANGELA G. IANNACCI, JJ.

2017-01239 Wells Fargo Bank, National Association, respondent, v Joseph Ballard, appellant, et al., defendants. (Index No. 709085/15)

DECISION & ORDER ON MOTION

Motion by the appellant to stay enforcement of an order of the Supreme Court, Queens County, dated September 1, 2016, enforcement of a judgment of the same court dated July 2, 2018, all proceedings in the above-entitled action, and the sale of the subject premises, pending hearing and determination of an appeal from the order. By order to show cause dated October 16, 2018, the parties to the appeal 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 on the ground that the right of direct appeal therefrom terminated upon entry of the judgment, and the appellant's motion was held in abeyance in the interim. 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 the papers filed in response thereto, upon the papers filed in support of the appellant's motion for a stay, 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) 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 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 December 19, 2018, the appellant shall serve and file a supplemental record containing the judgment; and it is further,

ORDERED that the appellant's motion to stay enforcement of the order dated September 1, 2016, enforcement of the judgment dated July 2, 2018, all proceedings in the above-entitled action, and the sale of the subject premises is granted and enforcement of the order dated September 1, 2016, enforcement of the judgment, all proceedings in the above-entitled action, and the sale of the subject premises are stayed pending hearing and determination of the appeal from the judgment.

AUSTIN, J.P., COHEN, DUFFY and IANNACCI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court