PRESENT: WHALEN, P.J., SMITH, PERADOTTO, LINDLEY, AND CURRAN, JJ.

CA 23-00023 & CA 23-00043

JAZMON MORRISON, PLAINTIFF-RESPONDENT, V SOUTH UNION RD HC, LLC, AND WILLIAMSVILLE SUBURBAN, LLC, DEFENDANTS-APPELLANTS.

Defendants having moved pursuant to CPLR 5519 [c] for a stay of enforcement of the judgment appealed in the appeal taken herein from a judgment of the Supreme Court, Erie County, entered December 13, 2022 (docket No. CA 23-00023; appeal No. 2), and to vacate dismissal of appeal and to withdrawal the appeal taken herein from an order of the Supreme Court, Erie County, entered May 26, 2022 (docket No. CA 23-00043; appeal No. 1), and plaintiff having cross-moved for a preliminary injunction and for other relief in appeal No. 2,

Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon,

It is hereby ORDERED that the defendants' motion for a stay of enforcement of the judgment appealed in appeal No. 2 is denied, on the ground that appellants may obtain an automatic stay pursuant to CPLR 5519 (a) (2) (see Kightlinger v Kightlinger, 231 AD2d 969 [4th Dept 1996]), and

It is further ORDERED that the defendants' motion insofar as it seeks to vacate dismissal of appeal No. 1 is granted, and

It is further ORDERED that the defendants' motion insofar as it seeks to withdraw appeal No. 1 is granted, and the appeal is dismissed without costs, and

It is further ORDERED that the plaintiff's cross motion seeking a preliminary injunction for other relief is denied without prejudice to an appropriate application and/or proceeding in Supreme Court (see CPLR 5221 [a] [4]; Buckeye Retirement Co. LLC, Ltd. v Quattrochi, 36 AD3d 641, 642 [2d Dept 2007]).

Entered: March 2, 2023

Ann Dillon Flynn

Clerk of the Court