Opinion
March 23, 1977
Upon motion of respondent and pursuant to CPLR 5519 (subd [c]), the order of Special Term made and entered on March 4, 1977, granting a stay pending appeal, is hereby vacated, without costs. In view of the facts and circumstances presented, it was improper to grant the stay upon telephone notice without affording respondent an opportunity to be heard in opposition as requested (cf. CPLR 2214, 6311, 6313, subd [a]; Rosen v Rosen, 38 A.D.2d 881). We are also of the opinion that, pursuant to CPLR 5519 (subd [a], par 1), the notice of appeal filed by respondent on March 7, 1977 effected an automatic stay of enforcement of the order in question (see Union Free School Dist. No. 7, Town of Greenburgh v Allen, 30 A.D.2d 629, mot for lv to app den 22 N.Y.2d 644).
Accordingly, appellant should have moved in this court to vacate the automatic stay (CPLR 5519, subd [c]) instead of applying for further orders, granted by Special Term on March 9, 1977, which initiated contempt proceedings (see Byrne v Long Is. State Park Comm., 67 Misc.2d 1084, 1086-1087). In view of our holding today, the cease and desist order issued on March 9, 1977 is also vacated. The determination of this court is without prejudice to a proper application by appellant, upon adequate notice, for a stay pending its appeal to the Court of Appeals. Koreman, P.J., Sweeney, Mahoney, Main and Herlihy, JJ., concur.