| VIRGINIA S. PAUL V DAVID G. COOPER, AS ADMINISTRATOR OF THE ESTATE OF ERNEST R. COOPER, DECEASED, UNITED REFINING |
| Motion No: CA 11-01738 |
| Slip Opinion No: 2012 NY Slip Op 65797(U) |
| Decided on February 29, 2012 |
| 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 CARNI, JJ.
DOCKET NO. CA 11-01738
| VIRGINIA S. PAUL, PLAINTIFF-APPELLANT, V DAVID G. COOPER, AS
ADMINISTRATOR OF THE ESTATE OF ERNEST R. COOPER, DECEASED, UNITED REFINING HOLDINGS, INC., DOING BUSINESS AS KWIK FILL GAS
STATION, UNITED REFINING COMPANY OF PENNSYLVANIA, UNITED REFINING CO., AND UNITED REFINING, INC.,
DEFENDANTS-RESPONDENTS. |
Appellant having moved to reargue a motion on the appeal taken herein from a judgment (denominated order) of the Supreme Court entered in the Office of the Clerk of the County of Monroe on May 20, 2011,
Now, upon reading and filing the affirmation of Michael J. Crosby, Esq., dated February 8, 2012, the notice of motion with proof of service thereof, the affidavit of David F. Bowen, Esq., sworn to February 21, 2012, and the affirmation of Phyliss A. Hafner, Esq., dated February 22, 2012, and due deliberation having been had thereon,
It is hereby ORDERED that the motion is granted to the extent that the first ordering paragraph of the order of this Court entered January 25, 2012, is amended by deleting that paragraph and inserting in its place the following: "It is hereby ORDERED that the motion insofar as it seeks an extension of time to perfect the appeal is granted to the extent that the judgment entered upon plaintiff's default brings up for review, pursuant to CPLR 5501 (a), those matters which were the subject of contest before the Supreme Court, and plaintiff shall perfect the appeal on or before March 26, 2012, and, in the event of failure to so perfect, the appeal is hereby dismissed without further order, and."
Memorandum: Notwithstanding the prohibition set forth in CPLR 5511 against an
appeal from an order or judgment entered upon the default of the appealing party, the appeal from the judgment brings up for review those " �matters which were the subject of contest' " before the Supreme Court (Tun v Aw, 10 AD3d 651, 652, quoting James v Powell, 19 NY2d 249, 256 n 3).
Entered: February 29, 2012
Frances E. Cafarell, Clerk