Fassl v. New York State Department of Taxation & Finance

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 "proceeding] to enforce the order or judgment appealed from” (CPLR 5519 [a]; see, Spillman v City of Rochester, 132 AD2d 1008; Dublanica v Rome Hospital/Murphy Mem. Hosp., 126 AD2d 977, Iv denied 70 NY2d 605; Matter of *1030Gordon v Town of Esopus, 107 AD2d 114). Present — Callahan, J. P., Doerr, Denman, Boomer and Pine, JJ.