| MICHAEL TUMBIOLO V NEW YORK CENTRAL MUTUAL FIRE INSURANCE CO. |
| Motion No: CA 10-00226 |
| Slip Opinion No: 2010 NY Slip Op 65195(U) |
| Decided on March 5, 2010 |
| Appellate Division, Fourth 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. |
PRESENT: SCUDDER., P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.
DOCKET NO. CA 10-00226
| MICHAEL TUMBIOLO, PLAINTIFF-APPELLANT, V NEW YORK CENTRAL
MUTUAL FIRE INSURANCE CO., DEFENDANT-RESPONDENT. |
Respondent having moved to dismiss the appeal taken from an order of the Supreme Court entered in the Office of the Clerk of the County of Seneca on September 9, 2009, on the grounds that appellant has failed to perfect timely the appeal and that the judgment of the Supreme Court entered in the Office of the Clerk of the County of Seneca on November 25, 2009 terminated plaintiff's right to appeal from the order entered,
Now, upon reading and filing the affidavit of R. Anthony Rupp, III sworn to January 22, 2010, the notice of motion with proof of service thereof, and due deliberation having been had thereon,
It is hereby ORDERED that the motion is granted and the appeal is dismissed without costs, because the appealed order was subsumed by entry of the judgment, and
It is further ORDERED that the motion is denied as moot insofar as it seeks dismissal for failure to perfect timely the appeal.
Entered: March 5, 2010
Patricia L. Morgan, Clerk