Town of Concord v. Edbauer

Full title: TOWN OF CONCORD, PETITIONER-RESPONDENT, v. KRISTINE EDBAUER…

Court: Appellate Division of the Supreme Court of the State of New York

Date published: Nov 30, 2017

2017 N.Y. Slip Op. 94788 (N.Y. App. Div. 2017)

Opinion

DOCKET NO. CA 17-01744

11-30-2017

TOWN OF CONCORD, PETITIONER-RESPONDENT, v. KRISTINE EDBAUER, RESPONDENT-APPELLANT.

WHALEN, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.

PRESENT:

Petitioner having moved to dismiss the appeal for lack of jurisdiction on the ground that the notice of appeal was not filed in the court of original instance or, in the alternative, for an extension of time to file and serve a brief on the appeal taken herein from an order of the Supreme Court entered in the Office of the Clerk of the County of Erie on July 21, 2017, and appellant having cross-moved for curative relief pursuant to CPLR 5520, for confirmation of an automatic stay or, in the alternative, a discretionary stay of enforcement of the order appealed,

Now, upon reading and filing the affirmation of Aaron M. Saykin, Esq., dated October 24, 2017, the affidavit of Kristine Edbauer sworn to October 31, 2017, and the notices of motion and cross-motion with proof of service thereof, and due deliberation having been had thereon,

It is hereby ORDERED that petitioner's motion is denied insofar as it seeks to dismiss the appeal, and

It is further ORDERED that appellant's cross motion is granted insofar as it seeks curative relief pursuant to CPLR 5520 (a) on the condition that appellant files the notice of appeal to this Court with the Clerk of the Town of Concord Town Court on or before December 20, 2017 (see CPLR 5515 [1]), and

It is further ORDERED that appellant's cross motion is dismissed as unnecessary insofar as it seeks confirmation of a stay or a discretionary stay on the ground that the order appealed is automatically stayed pursuant to Agriculture and Markets Law § 123 (5) (b), and

It is further ORDERED that petitioner's motion is granted insofar as it seeks an extension of time to file and serve a respondent's brief on the condition the brief is filed and served on or before December 20, 2017, and the Clerk is directed to accept the brief for filing, and

It is further ORDERED that reply briefs, if any, shall be filed and served on or before January 4, 2018.

Entered: November 30, 2017

Mark W. Bennett, Clerk