APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

M3013

T/sl

DAVID S. RITTER, J.P.

GABRIEL M. KRAUSMAN

ROBERT W. SCHMIDT

STEPHEN G. CRANE, JJ.

2003-07215 Samuel Carr, et al., respondents, v Glenda McGriff, appellant, et al., defendants. (Index No. 23039/95)

DECISION & ORDER ON MOTION

Motion by the appellant on an appeal from an order of the Supreme Court, Queens County, dated August 5, 2003, to stay all proceedings to enforce a judgment of foreclosure of the same court dated September 25, 2001, pending hearing and determination of the appeal.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the motion is granted and all proceedings to enforce the judgment dated September 25, 2001, are stayed pending hearing and determination of the appeal on condition that the appeal is perfected on or before October 30, 2003; and it is further,

ORDERED that in the event the appeal is not perfected on or before October 30, 2003, the court, on its own motion, may vacate the stay, or the respondents may move to vacate the stay, on three days notice.

RITTER, J.P., KRAUSMAN, SCHMIDT and CRANE, JJ., concur.

ENTER:

James Edward Pelzer

Clerk

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

M3094

T/sl

ANITA R. FLORIO, J.P.

STEPHEN G. CRANE

BARRY A. COZIER

REINALDO E. RIVERA, JJ.

2002-06111 Sean Casey, plaintiff-appellant, v Paul Ruffino, et al., defendants; Decolator, Cohen & DiPrisco, LLP, nonparty-appellant; Lysaght, Lysaght and Kramer, P.C., et al., nonparty- respondents. (Index No. 044010/96)

DECISION & ORDER ON MOTION

Motion by the nonparty-respondents for leave to reargue an appeal from a judgment of the Supreme Court, Kings County, entered December 23, 2002, which was determined by decision and order of this court dated June 9, 2003, or, in the alternative, for leave to appeal to the Court of Appeals from the decision and order of this court.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the branch of the motion which is for leave to reargue is denied; and it is further,

ORDERED that the branch of the motion which is for leave to appeal to the Court of Appeals is granted and the following question is certified to the Court of Appeals: Was the decision and order of this court dated June 9, 2003, properly made?

 Questions of law have arisen, which, in our opinion, ought to be reviewed by the Court of Appeals (see CPLR 5713).

FLORIO, J.P., CRANE, COZIER and RIVERA, JJ., concur.

ENTER:

James Edward Pelzer

Clerk

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

M3008

T/sl

MYRIAM J. ALTMAN, J.P.

HOWARD MILLER

THOMAS A. ADAMS

WILLIAM F. MASTRO, JJ.

2003-07614, 2003-07615 Gail Fanelli, appellant, v George Fanelli, respondent. (Index No. 11640/00)

DECISION & ORDER ON MOTION

Motion by the appellant on appeals from an order of the Supreme Court, Westchester County, entered March 20, 2002, and a judgment of the same court dated August 11, 2003, to stay enforcement of stated portions of the judgment pending hearing and determination of the appeals.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the appeal from the order is dismissed, without costs or disbursements, as the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and will be considered on the appeal from the judgment (see CPLR 5501[a][1]); and it is further,

ORDERED that the motion is granted to the extent that pending hearing and determination of the appeal from the judgment the sum of $50,000 of the husband's share of the proceeds of the sale of the marital residence shall continue to be held in escrow; pursuant to the terms of the judgment of divorce the balance of the funds shall be distributed as follows: $17,153 to the wife and $73,749 to the husband; and the motion is otherwise denied.

ALTMAN, J.P., H. MILLER, ADAMS and MASTRO, JJ., concur.

ENTER:

James Edward Pelzer

Clerk

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

M3077

Y/sl

DAVID S. RITTER, J.P.

SONDRA MILLER

DANIEL F. LUCIANO

HOWARD MILLER, JJ.

2002-09726 Andrzej Glazik, respondent, v City of New York, et al., defendants, New York City School Construction Authority, et al., appellants. (Index No. 6608/00)

DECISION & ORDER ON MOTION

Motion by the respondent for leave to reargue an appeal from an order of the Supreme Court, Kings County, dated September 25, 2002, which was determined by decision and order of this court dated June 30, 2003.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the motion is denied, with $100 costs.

RITTER, J.P., S. MILLER, LUCIANO and H. MILLER, JJ., concur.

ENTER:

James Edward Pelzer

Clerk

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

M2976

T/sl

SANDRA J. FEUERSTEIN, J.P.

WILLIAM D. FRIEDMANN

LEO F. McGINITY

ROBERT W. SCHMIDT, JJ.

2002-09411 H. Verby Company, Inc., plaintiff, v Carle Place Union Free School District, respondent, Premier-New York, Inc., appellant, et al., defendants. (Index No. 8395/01)

DECISION & ORDER ON MOTION

Motion by the appellant on an appeal from an order of the Supreme Court, Nassau County, dated September 12, 2002, to strike the respondent's brief on the ground that the respondent refused to serve and file a supplemental record containing a certain document, or, in the alternative, for leave to serve and file a supplemental record on appeal containing the subject document, and cross motion by the respondent to strike stated portions of the appellant's brief on the ground that those portions refer to material dehors the record, or, in the alternative, for leave to serve and file a supplemental record containing certain material.

Upon the papers filed in support of the motion and the cross motion and the papers filed in opposition thereto, it is

ORDERED that the motion is granted to the extent that on or before October 14, 2003, the appellant is directed to serve and file a supplemental record containing exhibit 15 to the affidavit of Stuart Grodd, sworn to on July 17, 2002, and the motion is otherwise denied; and it is further,

ORDERED that on the court's own motion, the appellant is directed to include in the supplemental record exhibits 16-19 to the affidavit of Stuart Grodd, sworn to on July 17, 2002; and it is further,

 ORDERED that the cross motion is granted to the extent that on or before October 14, 2003, the appellant shall delete or remove from all copies of its brief on file with this court (1) the second full paragraph on page 23, beginning with the words "Had the court below upheld", through and including the first sentence of the first paragraph on page 24, ending with the words "arising from the District's fraud.", and (2) the second full paragraph on page 24, beginning with the words "Nonetheless, it is submitted", to the end of that page, or shall serve and file a replacement brief omitting that material on or before October 14, 2003, and the cross motion is otherwise denied.

FEUERSTEIN, J.P., FRIEDMANN, McGINITY and SCHMIDT, JJ., concur.

ENTER:

James Edward Pelzer

Clerk

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

M3132

A/sl

MYRIAM J. ALTMAN, J.P.

HOWARD MILLER

THOMAS A. ADAMS

WILLIAM F. MASTRO, JJ.

2003-03585 Hospital for Joint Diseases, etc., et al., appellants-respondents, v Hertz Corporation, et al., respondents-appellants. (Index No. 11189/02)

DECISION & ORDER ON MOTION

Motion by the appellants-respondents on an appeal and cross appeal from an order of the Supreme Court, Nassau County, entered March 19, 2003, to strike portions of the respondents-appellants' brief, on the ground that it addresses issues improperly raised for the first time on appeal.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the motion is denied.

ALTMAN, J.P., H. MILLER, ADAMS and MASTRO, JJ., concur.

ENTER:

James Edward Pelzer

Clerk

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

M3034

Y/sl

GLORIA GOLDSTEIN, J.P.

STEPHEN G. CRANE

BARRY A. COZIER

REINALDO E. RIVERA, JJ.

2002-08516 Gloria Kingston, respondent, v Brookdale Hospital and Medical Center, defendant, Unni Moopan, appellant. (Index No. 35971/90)

DECISION & ORDER ON MOTION

Motion by the respondent on an appeal from an order of the Supreme Court, Kings County, dated May 31, 2002, for, among other relief, leave to reargue her prior motion to direct the appellant to serve and file a supplemental record on appeal, or, in the alternative, for leave to serve and file a supplemental record, which was decided by decision and order on motion of this court dated July 2, 2003, and to enlarge the time to serve and file a brief.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the branch of the motion which is to enlarge the time to serve and file a brief is granted, and on or before October 16, 2003, the respondent shall serve and file a brief which does not refer to the supplemental record which the respondent attempted to file; and it is further,

ORDERED that no further enlargements of time shall be granted; and it is further,

ORDERED that the branch of the motion which is for reargument is denied, with $100 costs.

GOLDSTEIN, J.P., CRANE, COZIER and RIVERA, JJ., concur.

ENTER:

James Edward Pelzer

Clerk

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

M3127

T/sl

DAVID S. RITTER, J.P.

GABRIEL M. KRAUSMAN

ROBERT W. SCHMIDT

STEPHEN G. CRANE, JJ.

2003-06197 Luis Lopez, et al., appellants, v Tierney & Courtney Overhead Door Sales Co., Inc., et al., respondents. (Index No. 335/01)

DECISION & ORDER ON MOTION

Separate motions by the respondents Tierney & Courtney Overhead Door Sales Co., Inc., and Mercy Medical Center, inter alia, to dismiss an appeal from an order of the Supreme Court, Queens County, dated April 28, 2003, on the ground, inter alia, in effect, that no appeal lies from an order entered upon the appellants' default.

Upon the papers filed in support of the motions and the papers filed in relation thereto, it is

ORDERED that the branches of the motions which are to dismiss the appeal are granted, and the appeal is dismissed, without costs or disbursements, as no appeal lies from an order entered upon the default of the appealing party (see CPLR 5511); and it is further,

ORDERED that the motions are otherwise denied.

RITTER, J.P., KRAUSMAN, SCHMIDT and CRANE, JJ., concur.

ENTER:

James Edward Pelzer

Clerk

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

M3140

E/sl

NANCY E. SMITH, J.P.

LEO F. McGINITY

HOWARD MILLER

REINALDO E. RIVERA, JJ.

2003-06486 Julio C. Martinez, et al., appellants, v Hershelle C. Feldman, et al., respondents. (Index No. 5626/02)

DECISION & ORDER ON MOTION

Motion by the appellants, inter alia, to stay the trial in the above-entitled action pending hearing and determination of an appeal from an order of the Supreme Court, Nassau County, dated June 30, 2003.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that on the court's own motion, the appeal is dismissed, without costs or disbursements, on the ground that no appeal lies from an ex parte order (see Violante v Berkowitz, 90 AD2d 837); and it is further,

ORDERED that the motion is denied as academic.

Were we to deem it appropriate to treat the instant appeal as an application for relief pursuant to CPLR 5704 (a), we would deny the application (see Bailen v Jones, 102 AD2d 859)

SMITH, J.P., McGINITY, H. MILLER and RIVERA, JJ., concur.

ENTER:

James Edward Pelzer

Clerk

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

M3133

A/sl

MYRIAM J. ALTMAN, J.P.

GLORIA GOLDSTEIN

LEO F. McGINITY

WILLIAM F. MASTRO, JJ.

2003-04351 Orwell Building Corp., respondent, v Ali Bessaha, et al., appellants, et al., defendants (and a third-party action). (Index No. 24614/93)

DECISION & ORDER ON MOTION

Motion by the appellants, inter alia, to stay an inquest on damages pending hearing and determination of an appeal from an order of the Supreme Court, Queens County, dated April 22, 2003.

Upon the papers submitted in support of the motion and the papers submitted in opposition thereto, it is

ORDERED that the motion is denied.

ALTMAN, J.P., GOLDSTEIN, McGINITY and MASTRO, JJ., concur.

ENTER:

James Edward Pelzer

Clerk

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

M3091

T/sl

DAVID S. RITTER, J.P.

SONDRA MILLER

GLORIA GOLDSTEIN

HOWARD MILLER, JJ.

2002-04856, 2003-04627, 2003-04628 In the Matter of USA Nutritionals, Inc. Lawrence Sayage, respondent; Gary Harlem, et al., appellants. (Index No. 11093/99)

DECISION & ORDER ON MOTION

Motion by the appellants for leave to reargue appeals from a Referee's report dated November 26, 2001, an undated decision of the Supreme Court, Nassau County, and an order and judgment (one paper) of the same court entered April 24, 2002, which were determined by decision and order of this court dated June 23, 2003, or, in the alternative, for leave to appeal to the Court of Appeals from the decision and order of this court.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the motion is denied, with $100 costs.

RITTER, J.P., S. MILLER, GOLDSTEIN and H. MILLER, JJ., concur.

ENTER:

James Edward Pelzer

Clerk

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

M3064

M/mv

2003-04491, 2003-04492 In the Matter of Shawn V. (Anonymous), appellant. (Docket No. D-11020-01)

SCHEDULING ORDER

Appeals by the juvenile from two orders of the Family Court, Queens County, dated March 19, 2003, and May 6, 2003, respectively. The appellant's brief was filed in the office of the Clerk of this court on September 25, 2003. Pursuant to § 670.4(a)(2) of the Rules of this court (see 22 NYCRR 670.4[a][2]), it is

ORDERED that the respondent's brief shall be served and filed within 45 days of the date of this order.

ENTER:

James Edward Pelzer

Clerk

The Case Manager assigned to this case is Mr. Rose. Please contact him at 718-722-6487 with any questions.

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

M3079

M/mv

2003-07658 In the Matter of Helena W. (Anonymous). Administration for Children's Services, respondent; Avis W. (Anonymous), appellant. (Proceeding No. 1) In the Matter of Prince W. (Anonymous). Administration for Children's Services, respondent; Avis W. (Anonymous), appellant. (Proceeding No. 2) In the Matter of Regene W. (Anonymous). Administration for Children's Services, respondent; Avis W. (Anonymous), appellant. (Proceeding No. 3) (Docket Nos. B-16825-00, B-16826-7-00)

SCHEDULING ORDER

Appeal by Avis W. from an order of the Family Court, Kings County, dated August 25, 2003. By decision and order on motion of this court dated October 1, 2003, the appellant's motion to dispense with printing and for assignment of counsel was granted, and the following named attorney was assigned to prosecute the appeal:

Joan N. G. James, Esq.

44 Court Street - #905

Brooklyn, New York 11201

(718) 596-6926

Pursuant to § 670.4(a) of the Rules of this court (22 NYCRR 670.4[a]), it is

ORDERED that the appeal in the above-entitled proceedings shall be perfected either within 60 days after the receipt by the assigned counsel of the transcripts of the minutes of the proceedings in the Family Court, and the assigned counsel shall notify this court by letter of the date the transcripts are received, or, in cases where there are no minutes of proceedings to be transcribed, within 60 days of the date of this scheduling order; and it is further,

ORDERED that within 30 days after the date of this scheduling order, the assigned counsel shall file in the office of the Clerk of this court one of the following:

(1) an affidavit or affirmation stating that there are no minutes of any Family Court proceedings to be transcribed for the appeal; or

(2) if there are such minutes, an affidavit or affirmation that the transcript has been received, and indicating the date that it was received; or

(3) if the transcript has not been received, an affidavit or affirmation stating that the order of this court dated October 1, 2003, has been served upon the clerk of the court from which the appeal is taken, the date thereof, and the date by which the transcript is expected; or

(4) an affidavit or an affirmation withdrawing the appeal; and it is further,

ORDERED that if none of the above actions described in (1), (2), (3), or (4) above, has been taken within 30 days of the date of this scheduling order, the Clerk of the court shall issue an order to all parties to the appeal to show cause why the appeal shall not be dismissed.

ENTER:

James Edward Pelzer

Clerk

The Case Manager assigned to this case is Ms. Vazquez. Please contact her at 718-722-6488 with any questions.

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

M3106

T/sl

DAVID S. RITTER, J.P.

GABRIEL M. KRAUSMAN

ROBERT W. SCHMIDT

STEPHEN G. CRANE, JJ.

2003-04590 In the Matter of James Wagenhoffer, appellant, v Nancy Baker, respondent. (Docket No. V-568/02)

DECISION & ORDER ON MOTION

Appeal by James Wagenhoffer from an order of the Family Court, Orange County, dated April 14, 2003. By order to show cause dated September 10, 2003, the parties or their attorneys were directed to show cause before this court why an order should or should not be made and entered dismissing the appeal in the above-entitled proceeding for failure to comply with a scheduling order dated August 1, 2003, issued pursuant to 22 NYCRR 670.4(a).

Now, on the court's own motion, and no papers having been filed in response to the order to show cause, it is

ORDERED that the appeal is dismissed, without costs or disbursements, for failure to comply with the scheduling order dated August 1, 2003 (see 22 NYCRR 670.4[a][5]).

RITTER, J.P., KRAUSMAN, SCHMIDT and CRANE, JJ., concur.

ENTER:

James Edward Pelzer

Clerk

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

M3017

M/mv

2003-04581 In the Matter of Ruth Y. (Anonymous). Orange County Department of Social Services, respondent; Yvonne Y. (Anonymous), appellant. (Proceeding No. 1) In the Matter of Kimberly Y. (Anonymous). Orange County Department of Social Services, respondent; Yvonne Y. (Anonymous), appellant. (Proceeding No. 2) (Docket Nos. B-481-02, B-482-02)

SCHEDULING ORDER

Appeal by Yvonne Y. from an order of the Family Court, Orange County, dated March 13, 2003. On the court's own motion, it is

ORDERED that its decision and order dated September 25, 2003, in the above-entitled proceedings is recalled and vacated, and the following is substituted therefor:

Pursuant to § 670.4(a) of the Rules of this court (22 NYCRR 670.4[a]), it is

ORDERED that the appeal in the above-entitled proceedings shall be perfected within 60 days after the receipt by the appellant of the transcripts of the minutes of the proceedings in the Family Court, and the appellant shall notify this court by letter of the date the transcripts are received, or, in cases where there are no minutes of proceedings to be transcribed, within 60 days of the date of this scheduling order; and it is further,

ORDERED that within 30 days after the date of this scheduling order, the appellant shall file in the office of the Clerk of this court one of the following:

(1) an affidavit or affirmation stating that there are no minutes of the Family Court proceedings to be transcribed for the appeal; or

(2) if there are such minutes, an affidavit or affirmation that the transcript has been received, and indicating the date that it was received; or

(3) if the transcript has not been received, an affidavit or affirmation stating that it has been ordered and paid for, the date thereof and the date by which the transcript is expected; or

(4) if the appellant is indigent and cannot afford to obtain the minutes or perfect the appeal, a motion in this court for leave to prosecute the appeal as a poor person and for the assignment of counsel, pursuant to the requirements of CPLR 1101. Such a motion must be supported by an affidavit from the appellant, stating either that he or she qualified for assigned counsel upon application to the Family Court and that his or her financial status has not changed since that time, or that he or she had retained counsel or appeared pro se in the Family Court, and listing his or her assets and income; or

(5) an affidavit or an affirmation withdrawing the appeal; and it is further,

ORDERED that if none of the above actions described in (1), (2), (3), (4), or (5) above, has been taken within 30 days of the date of this scheduling order, the Clerk of the court shall issue an order to all parties to the appeal to show cause why the appeal shall not be dismissed.

ENTER:

James Edward Pelzer

Clerk

The Case Manager assigned to this case is Ms. Vazquez. Please contact her at 718-722-6488 with any questions.

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

M2904

K/sl

STEPHEN G. CRANE, J.

2001-09711 The People, etc., respondent, v Marci Stein, appellant. (Ind. No. 00-00575)

DECISION & ORDER ON MOTION

Motion by the appellant for leave to renew her prior motion pursuant to CPL 460.50 for a stay of execution of a judgment of the County Court, Westchester County, rendered October 30, 2001, and to release the appellant on her own recognizance, or in the alternative, to fix reasonable bail, which motion was determined by me on November 13, 2001.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the motion is denied.

STEPHEN G. CRANE

Associate Justice

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

M3131

K/sl

ANITA R. FLORIO, J.P.

SANDRA J. FEUERSTEIN

STEPHEN G. CRANE

REINALDO E. RIVERA, JJ.

2003-07246 The People, etc., respondent, v Marci Stein, appellant. (Ind. No. 00-00575)

DECISION & ORDER ON MOTION

Motion by the appellant pursuant to CPL 460.50 for a stay of execution of a judgment of the County Court, Westchester County, rendered October 30, 2001, and to release the appellant on her own recognizance, or in the alternative, to fix reasonable bail, pending the hearing and determination of an appeal, by permission, from an order of the same court dated July 29, 2003.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the motion is denied (see CPL 460.50 [3]).

FLORIO, J.P., FEUERSTEIN, CRANE and RIVERA, JJ., concur.

ENTER:

James Edward Pelzer

Clerk

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

M2912

K/sl

STEPHEN G. CRANE, J.

2003-07246 The People, etc., respondent, v Marci Stein, appellant. (Ind. No. 00-00575)

DECISION, ORDER AND CERTIFICATE GRANTING LEAVE TO APPEAL

Application by the defendant pursuant to CPL 450.15 and 460.15 for a certificate granting leave to appeal to this court from an order of the County Court, Westchester County, dated July 29, 2003, which has been referred to me for determination.

Upon the papers filed in support of the application and the papers filed in opposition thereto, it is

ORDERED that the application is granted; the defendant is granted leave to appeal from the order of the County Court, Westchester County, dated July 29, 2003, made in this case; and it is further,

CERTIFIED that said order involves questions of law or fact which ought to be reviewed by the Appellate Division, Second Department; and it is further,

ORDERED that the papers which accompanied this application are deemed to be a timely notice of appeal from said order.

STEPHEN G. CRANE

Associate Justice

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

M2675

F/

SANDRA L. TOWNES, J.

2003-06317 The People, etc., plaintiff, v Christopher Vassell, defendant. (Ind. No. 2758/94)

DECISION & ORDER ON APPLICATION

Application by the defendant, pursuant to CPL 450.15 and 460.15 for a certificate granting leave to appeal to this court from an order of the Supreme Court, Kings County, dated May 22, 2003, which has been referred to me for determination.

Upon the papers filed in support of the application and the papers filed in opposition thereto, it is

ORDERED that the application is denied.

SANDRA L. TOWNES

Associate Justice