Opinion
March 16, 1990
Present — Callahan, J.P., Doerr, Denman, Boomer and Pine, JJ.
Motion to vacate automatic stay denied. Memorandum: The motion to vacate the supposed automatic stay is denied as unnecessary. The filing of an appeal by the defendant from the order denying defendant's motion to dismiss the complaint does not preclude Supreme Court from hearing and determining plaintiffs' motion in the action for class certification. Plaintiffs' motion is not a "proceedin[g] to enforce the order or judgment appealed from" (CPLR 5519 [a]; see, Spillman v City of Rochester, 132 A.D.2d 1008; Dublanica v Rome Hospital/Murphy Mem. Hosp., 126 A.D.2d 977, lv denied 70 N.Y.2d 605; Matter of Gordon v Town of Esopus, 107 A.D.2d 114).