| Ayoob Khodadadi, M.D. a/a/o Jemaliz Troche v Mvaic |
| Motion No: 2009-01660 QC |
| Slip Opinion No: 2009 NY Slip Op 85660(U) |
| Decided on October 9, 2009 |
| Appellate Term, Second Department, Motion Decision |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This motion is uncorrected and is not subject to publication in the Official Reports. |
APPELLATE TERM : 2nd, 11th and 13th JUDICIAL DISTRICTS
| AYOOB KHODADADI, M.D. a/a/o JEMALIZ TROCHE, Respondent, -against- MVAIC, Appellant. |
DECISION
Motion by appellant to stay enforcement of the judgment pending determination of the appeal is denied as unnecessary.
The service of the notice of appeal by appellant resulted in an automatic stay pursuant to CPLR 5519 (a) (1).
As such a dismissal is discretionary (see e.g. Associates Home Equity Servs. Inc. v Gambella, 40 AD3d 896 [2007]), we decline at this juncture to grant respondent's request, in his opposition papers, that we dismiss the instant appeal from the judgment on the ground that the prior appeal by appellant from the order underlying the judgment was dismissed for lack of prosecution. Respondent, if he be so advised, may renew his request on the appeal, when the full record is before the court.