Marine Bulkheading Inc. v Generation Next of Zerega LLC

Motion No: M-3503

Slip Opinion No: 2019 NYSlipOp 78697(U)

Decided on September 3, 2019

Appellate Division, First 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.

September 3, 2019

Marine Bulkheading, Inc.,

Plaintiff-Respondent,

v

Generation Next of Zerega, LLC,

Defendant-Appellant,

E & Y Development of NY, LLC,

Defendant.

An appeal having been taken to this Court from an order and judgment (one paper) of the Supreme Court, Bronx County, entered on or about March 29, 2019, which, inter alia, awarded plaintiff judgment against defendants in the amount of $1,476,158.04 and directed that the subject property to be sold at public auction to satisfy the judgment, And defendant-appellant having posted an undertaking on appeal in the amount of $1,845,198,And defendant-appellant having moved for an order: (i) discharging the mechanic's lien filed by plaintiff-respondent, pursuant to N.Y. Lien Law § 19(4)(a), and staying enforcement of the aforesaid order and judgment based on the filing of the aforesaid undertaking; (ii) terminating or cancelling the scheduled public auction sale based on the discharge of said mechanic's lien; (iii) declaring the aforementioned undertaking sufficient and that an automatic stay, regarding the enforcement of the aforesaid order and judgment, was duly effectuated on June 27, 2019, pursuant to CPLR § 5519(a)(2), or (iv) in the alternative, if this Court finds the amount of the undertaking insufficient, declaring that the automatic stay was effectuated, provided that within 30 days of the date hereof defendant-appellant files an undertaking in an amount fixed by this Court, or, as a second alternative, granting a discretionary stay of the aforesaid order and judgment,And an interim stay of the auction sale, scheduled for July 29, 2019, having been granted by an order of a Justice of this Court dated July 16, 2019, pending the determination of the motion, Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, It is ordered that the motion is granted to the extent of declaring that enforcement of the order and judgment (one paper) of the Supreme Court, Bronx County, entered on or about March 29, 2019 is automatically stayed, pending hearing and determination of the appeal taken therefrom, based upon defendant-appellant's posting of the undertaking in the amount of $1,845,198.00 (see CPLR 5519(a)(2)). ENTERED: September 3, 2019

_____________________ CLERK

Present - Hon. Angela M. Mazzarelli, Justice Presiding, Barbara R. Kapnick Troy K. Webber Ellen Gesmer Cynthia S. Kern, Justices

M-3503

Index No. 302497/08