Opinion
Motion No: 2013-01316 WC
05-08-2014
, P.J.
ANGELA G. IANNACCI
BRUCE E. TOLBERT, JJ.
DECISION & ORDER ON MOTION
Motion by appellant to stay, pending the determination of the appeal therefrom, enforcement of an order of the City Court of Yonkers, Westchester County, dated February 14, 2013, which directed appellant to restore respondent's possessions. Separate motion by respondent to vacate a temporary stay issued by this court on June 25, 2013, in effect, for an enlargement of time to serve and file opposition to appellant's motion, and for other relief. By decision and order on motion dated August 23, 2013, the matter was remitted to the City Court for a hearing to determine whether respondent is an adult incapable of adequately defending his rights and, if so, for the appointment of a guardian ad litem pursuant to CPLR 1202, and appellant's motion and respondent's motion were held in abeyance in the interim. By decision and order dated November 13, 2013, the City Court determined that respondent is an adult incapable of adequately defending his rights and appointed a guardian ad litem to appear on his behalf. Separate motion by appellant to stay a conference ordered by the City Court and for other relief.
Upon the papers filed in support of the motions and upon the City Court's determination dated November 13, 2013, it is
ORDERED, on the court's own motion, that appellant's motions and respondent's motion are consolidated for purposes of disposition; and it is further,
ORDERED, on the court's own motion, that the appeal is dismissed, as no appeal as of right lies from an order determining an oral motion (UCCA 1702 [a] [2]; CPLR 2211; New Century Osteopathic v State Farm Fire & Cas. Ins. Co., 22 Misc 3d 126[A], 2008 NY Slip Op 52584[U] [App Term, 2d, 11th & 13th Jud Dists 2008]), and we decline to grant leave to appeal; and it is further,
ORDERED that appellant's motions and respondent's motion are denied as academic.
A review of the moving papers indicates that the City Court's February 14, 2013 order granted an oral application by respondent's counsel to direct appellant to return respondent's possessions, as respondent's request for that relief had been stricken from the order to show cause pending before the court. No appeal lies as of right from the February 14, 2013 order, and we decline to grant leave to appeal therefrom.
It is further noted that respondent, an adult incapable of adequately defending his rights, entered into the stipulation giving rise to the final judgment pursuant to which he was evicted, without the benefit of a guardian ad litem (cf. CPLR 1203).
ENTER:
Paul Kenny
Chief Clerk