Appellate Division: Second Judicial Department

M268470

kbp/

JOHN M. LEVENTHAL, J.P.

ROBERT J. MILLER

JOSEPH J. MALTESE

HECTOR D. LASALLE, JJ.

2019-09530 U.S. Bank National Association, etc., respondent, v Congregation Divrie Yoel, etc., appellant, et al., defendants. (Index No. 1782/16)

DECISION & ORDER ON MOTION

Motion by the respondent to dismiss an appeal from a judgment of the Supreme Court, Orange County, dated June 15, 2019, on the ground that no appeal lies from a judgment entered upon the default of the appealing party, on the ground that the appellant's appendix is inadequate, and on the ground that the dismissal of a prior appeal for failure to timely perfect precludes consideration of the issues to be raised on this appeal pursuant to Bray v Cox (38 NY2d 350), or, in the alternative, to extend the time to serve and file a brief. Separate motion by the appellant to stay all proceedings and the foreclosure sale of the subject premises, pending hearing and determination of the appeal.

Upon the papers filed in support of the respondent's motion and no papers having been filed in opposition or in relation thereto, and upon the papers filed in support of the appellant's motion and the papers filed in opposition thereto, it is

ORDERED that the branch of the respondent's motion which is to dismiss the appeal on the ground that no appeal lies from a judgment entered upon the default of the appealing party is denied; and it is further,

ORDERED that the branch of the respondent's motion which is to dismiss the appeal on the ground that the appellant's appendix is inadequate is denied on condition that on or before January 27, 2020, the appellant shall serve and file a supplemental appendix containing all papers before the Supreme Court on the motion determined by the order of the Supreme Court, Orange County, dated June 15, 2019, and it is further,

ORDERED that the branch of the respondent's motion which is to dismiss the appeal on the ground that the dismissal of a prior appeal precludes consideration of the issues to be raised on this appeal is held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof; and it is further,

ORDERED that the branch of the respondent's motion which is to extend the time to serve and file a brief is granted, the respondent's time to serve and file a brief is extended until January 27, 2020, and the respondent's brief shall be served and filed on or before that date; and it is further,

ORDERED that the appellant's motion is granted, and all proceedings and the foreclosure sale of the subject premises, located at 6 Quickway Road, Palm Tree, New York, formerly known as 6 Quickway Road, Monroe, New York, are stayed pending hearing and determination of the appeal.

LEVENTHAL, J.P., MILLER, MALTESE and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court