APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

DECISION

On the court's own motion, poor person relief is granted and Leo K. Barnes, Esq., is relieved of representing defendant-appellant on the appeal and other counsel assigned pursuant to article 18-B of the County Law.

On the court's own motion, an enlargement of time to perfect appeal is granted and appeal shall be perfected by June 3, 2005; otherwise appeal dismissed.

Appellant's time to file an affidavit of errors, if necessary, is extended 30 days from the date of this order.

The stenographer of the trial court shall promptly make, certify and file two typewritten transcripts of the minutes of all proceedings with the clerk of the trial court, who is directed to furnish without charge one copy to the attorney, who is now assigned as counsel to prosecute the appeal, and

Assigned counsel shall serve a copy of the transcript upon the District Attorney and proof of service shall be filed simultaneously with the service of appellant's brief, same to be returned upon argument or submission of the appeal. The clerk is further directed to file the second copy of the transcript with the record, which shall then be filed with this court, and

Upon service of a copy of this decision and order upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the pre-sentence report prepared in connection with the defendant's sentencing, including the recommendation sheet and any prior reports on the defendant which are incorporated or referred to in the report.

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

DECISION

Motion by tenant-appellant for reargument of this court's order dated March 1, 2005 is granted and upon reargument tenant's motion for a stay pending appeal is granted on condition that the appeal is perfected by July 1, 2005; otherwise stay vacated. Tenant is directed to pay to landlord any and all arrears in rent and/or use and occupancy at the rate previously payable as rent within 10 days from the date of this order and to continue to pay landlord use and occupancy at a like rate as it becomes due. Tenant is further directed to keep all dogs away from the premises pending determination of the appeal. Upon failure of tenant to make a required payment or comply in keeping all her dogs away from the premises, landlord may move upon 3 days' notice to vacate the stay.

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

DECISION

That branch of the motion by tenant-appellant for stay is denied without prejudice to appellant seeking a stay in the court below pursuant to CPLR 5519 (a) (6).

That branch of the motion for poor person relief is denied.

Cross motion by landlord to set use and occupancy at the monthly rate of $2,000 and/or set an undertaking pending determination of the appeal is denied.

With regard to setting a proper amount for use and occupancy, this court lacks a sufficient basis upon which to determine a fair amount. Thus, the appellant may, if so advised, bring an application to fix an undertaking pursuant to CPLR 5519 (a) (6) in the court below.

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

DECISION

Motion by tenant-appellant for a stay pending appeal granted on condition that tenant-appellant perfect the appeal by August 5, 2005. Upon a default, landlords-respondents may move to vacate the stay upon three days' notice.

Upon this motion for a stay pending determination of an appeal from an order denying her motion to vacate a default final judgment, tenant asserts that she paid petitioner Sims, the bank manager of Southern Star Mortgage Co., a mortgage application and appraisal fee of $970; that she was told that her mortgage was being refinanced; that she was assigned an attorney at the closing; and that the closing resulted not in a refinancing of the mortgage but in a transfer of title to petitioner Skopicki and later to Sims and a leaseback to tenant-appellant. These assertions remain undisputed on this motion, and, if true, may give rise to an inference of fraud and/or overreaching by landlords-respondents. In these circumstances, a stay should be granted (see e.g. Coven v Trust Co. of New Jersey, 225 AD2d 576 [1996]; Siegel, New York Prac § 427, at 694 [3d ed]).