Opinion
2011-1880 N C
12-02-2011
Hawthorne Gardens Owners Corp., Respondent, v. David B. Jacobs, Appellant.
, P.J.
MELVYN TANENBAUM
JOHN R. LaCAVA, JJ.
DECISION & ORDER ON MOTION
Motion by appellant pro se (1) for a stay pending the determination of appeals from orders of the District Court of Nassau County, First District, dated March 31, 2011 and June 20, 2011, respectively, (2) to vacate appellant's default in appearing at the continuation of the trial of the proceeding, (3) to dismiss the petition, (4) to enlarge the time to perfect the appeals, (5) to consolidate the appeals, and (6) for a preference. Cross motion by respondent to increase the amount of the undertaking deposited by appellant and dismiss the appeal from the order dated March 31, 2011. Separate motion by appellant for an enlargement of time to serve and file papers in opposition to respondent's cross motion and in reply to respondent's opposition to appellant's motion.
Upon the papers filed in support of the motions and cross motion and the papers filed in opposition thereto, it is
ORDERED, on the court's own motion, that the motions and cross motion are consolidated for purposes of disposition; and it is further,
ORDERED that appellant's motion for an enlargement of time to serve and file papers in opposition to respondent's cross motion and in reply to respondent's opposition to appellant's motion is granted and the papers are deemed timely served and filed; and it is further,
ORDERED that the branch of respondent's cross motion seeking to dismiss the appeal from the order dated March 31, 2011 is granted and the appeal is dismissed on the ground that no appeal lies from a refusal to sign an order to show cause (UDCA 1702 [a] [2]; Matter of Allah v Scheinman, 61 NY2d 755 [1984]; Khanal v Sheldon, 74 AD3d 894 [2010]; Gache v Town/Village of Harrison, 251 AD2d 624 [1998]; People ex rel. Aguilar v Kelly, 143 AD2d 535 [1988]; Poplar Realty v Po, 3 Misc 3d 22 [App Term, 2d & 11th Jud Dists 2003]; 10 Carmody-Wait 2d, NY Prac § 70:8, at 238; cf. CPLR 5704); and it is further,
ORDERED that the branch of appellant's motion seeking a stay pending the determination of the appeal from the order dated June 20, 2011 is granted; and it is further,
ORDERED that the branch of respondent's cross motion seeking to increase the undertaking is denied; and it is further,
ORDERED that the branches of appellant's motion seeking to vacate appellant's default in appearing at the continuation of the trial of the proceeding and to dismiss the petition are denied without prejudice to appellant seeking such relief on the appeal; and it is further,
ORDERED that the branches of appellant's motion seeking an enlargement of time to perfect the appeal from the order dated March 31, 2011 and to consolidate the appeals are denied as moot; and it is further,
ORDERED that the branch of appellant's motion seeking an enlargement of time to perfect the appeal from the order dated June 20, 2011 is denied as unnecessary as the appeal has been timely perfected; and it is further,
ORDERED that the branch of appellant's motion seeking a preference is denied.
ENTER:
Paul Kenny
Chief Clerk