| Merling v Ash Developement, LLC |
| Motion No: 2018-15134 |
| Slip Opinion No: 2019 NY Slip Op 62040(U) |
| Decided on February 1, 2019 |
| Appellate Division, Second Department, Motion Decision |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This motion is uncorrected and is not subject to publication in the Official Reports. |
Appellate Division: Second Judicial Department
M259696
E/sl
REINALDO E. RIVERA, J.P.
LEONARD B. AUSTIN
ROBERT J. MILLER
ANGELA G. IANNACCI, JJ.
|
2018-15134 Esther Merling, appellant, v Ash Developement, LLC, et al., respondents. (Index No. 719085/18)
| DECISION & ORDER ON MOTION |
Motion by the appellant, inter alia, to enjoin the respondents, or anyone acting on their behalf, from performing certain construction work, pending hearing and determination of an appeal from an order of the Supreme Court, Queens County, dated December 24, 2018.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
ORDERED that the motion is granted to the extent that the respondents, or anyone acting on their behalf, are enjoined from performing construction work which encroaches upon the appellant's property or destroys or disturbs the subterranean window-well appurtenant to the appellant's property, on condition that the appellant perfects the appeal on or before March 4, 2019, and posts an undertaking with corporate surety in the office of the Clerk of the Supreme Court, Queens County, in a sum to be fixed by the Supreme Court, Queens County, in terms that if the order appealed from, or any part of it, is affirmed, the surety will indemnify the respondents if it is ultimately determined that the respondents sustained a loss due to the injunction, and the motion is otherwise denied; and it is further,
ORDERED that the matter is remitted to the Supreme Court, Queens 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, Queens County, fixing the amount thereof; and it is further,
ORDERED that in the event the appeal is not perfected on or before March 4, 2019, 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.
RIVERA, J.P., AUSTIN, MILLER and IANNACCI, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court