Appellate Division: Second Judicial Department

M297260

AFA/

VALERIE BRATHWAITE NELSON, J.P.

CHERYL E. CHAMBERS

HELEN VOUTSINAS

LAURENCE L. LOVE, JJ.

2021-00988 Nestor I, LLC, plaintiff-appellant, v Cathy Moriarty-Gentile, etc., et al., defendants- respondents, et al., defendants. (Index No. 65328/2014)

DECISION & ORDER ON MOTION

2022-02371

Nestor I, LLC, plaintiff-respondent, v Cathy

Moriarty-Gentile, etc., et al., defendants-

appellants, et al., defendants.

(Index No. 65328/2014)

2023-05631

Nestor I, LLC, plaintiff-respondent, v Cathy

Moriarty-Gentile, etc., et al., defendants-

appellants, et al., defendants; Joseph J. Gentile,

nonparty-appellant.

(Index No. 65328/2014)

Appeal by the plaintiff Nestor I, LLC from an order of the Supreme Court, Suffolk County, dated December 14, 2020, appeal by the defendants Cathy Moriarty-Gentile and Joseph Gentile from an order of the same court dated February 2, 2022, and appeal by the defendants Cathy Moriarty-Gentile and Joseph Gentile, and non-party Joseph J. Gentile, from an order and judgment (one paper) of the same court dated September 16, 2022. Motion by the defendants Cathy Moriarty-Gentile and Joseph Gentile to dismiss the appeal from the order dated December 14, 2020, on the ground that the right of direct appeal from the order terminated upon entry in the above-entitled action of the order and judgment dated September 16, 2022. Motion by the plaintiff Nestor I, LLC to dismiss the appeal from the order dated February 2, 2022, on the ground that the right of direct appeal from the order terminated upon entry in the above-entitled action of the order and judgment dated September 16, 2022, and on the ground that the defendants Cathy Moriarty-Gentile and Joseph Gentile are not aggrieved, or, in the alternative, for leave to file a sur-reply brief with respect to the appeal from the order dated February 2, 2022. Motion by the defendants Cathy Moriarty-Gentile and Joseph Gentile, and non-party Joseph J. Gentile, in effect, to consolidate the appeal from the order dated February 2, 2022, with the appeal from the order and judgment dated September 16, 2022, and to stay enforcement of the order and judgment dated September 16, 2022, pending hearing and determination of the appeals.

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

ORDERED that the motion by the defendants Cathy Moriarty-Gentile and Joseph Gentile to dismiss the appeal from the order dated December 14, 2020, is held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof; and it is further,

ORDERED that the branch of the motion by Nestor I, LLC to dismiss the appeal from the order dated February 2, 2022, on the ground that the right of direct appeal from that order terminated upon entry in the above-entitled action of the order and judgment dated September 16, 2022, is granted, and the appeal from the order dated February 2, 2022, is dismissed, without costs or disbursements (see Matter of Aho, 39 NY2d 241); and it is further,

ORDERED that the branches of the motion by Nestor I, LLC which are to dismiss the appeal from the order dated February 2, 2022, on the ground that the defendants Cathy Moriarty-Gentile and Joseph Gentile are not aggrieved, or, in the alternative, for leave to file a sur-reply brief with respect to the appeal from the order dated February 2, 2022, are denied as academic; and it is further,

ORDERED that the branch of the motion by the defendants Cathy Moriarty-Gentile and Joseph Gentile, and non-party Joseph J. Gentile, in effect, to consolidate the appeal from the order dated February 2, 2022, with the appeal from the order and judgment dated September 16, 2022, is denied as academic; and it is further,

ORDERED that the branch of the motion by the defendants Cathy Moriarty-Gentile and Joseph Gentile, and non-party Joseph J. Gentile, which is to stay enforcement of the order and judgment dated September 16, 2022, is granted, and enforcement of the order and judgment dated September 16, 2022, is stayed, pending hearing and determination of the appeals, on condition that the appeal from the order and judgment dated September 16, 2022, is perfected on or before July 24, 2024; and it is further,

ORDERED that in the event the appeal from the order and judgment dated September 16, 2022, is not perfected on or before July 24, 2024, the Court, on its own motion, may vacate the stay, without further notice, or the respondent may move to vacate the stay, on three days notice; and it is further,

ORDERED that on the Court's own motion, the time for the defendants Cathy Moriarty-Gentile and Joseph Gentile, and non-party Joseph J. Gentile to perfect the appeal from the order and judgment dated September 16, 2022, is extended, and on or before July 24, 2024, the defendants Cathy Moriarty-Gentile and Joseph Gentile, and non-party Joseph J. Gentile shall serve and file the record or appendix and the appellants' brief via NYSCEF, if applicable, or, if NYSCEF is not mandated, serve the record or appendix and the appellants' brief and upload digital copies of the record or appendix and the appellants' brief, with proof of service thereof, through the digital portal on this Court's website.

BRATHWAITE NELSON, J.P., CHAMBERS, VOUTSINAS and LOVE, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court