| TOWN OF AMHERST AND GRANITE STATE INSURANCE COMPANY V AARON HILGER ARTHUR HILGER AND SALLY BISHER TOWN OF AMHERST AND |
| Motion No: CA 12-00802 |
| Slip Opinion No: 2012 NY Slip Op 76713(U) |
| Decided on June 20, 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 12-00802
DOCKET NO. CA 12-00803
| TOWN OF AMHERST AND GRANITE STATE INSURANCE COMPANY,
PLAINTIFFS-RESPONDENTS, V AARON HILGER, DEFENDANT, ARTHUR HILGER AND SALLY BISHER, DEFENDANTS-APPELLANTS.
(APPEAL NO. 1.) TOWN OF AMHERST AND GRANITE STATE INSURANCE COMPANY, PLAINTIFFS-RESPONDENTS, V AARON HILGER,
DEFENDANT, ARTHUR HILGER AND SALLY BISHER, DEFENDANTS-APPELLANTS. (APPEAL NO. 2.) |
Respondents having moved for an order pursuant to CPLR 2508 and 5519 (a) (2) directing appellants to file a new undertaking issued by a new surety, other than the New York State Insurance Fund, on the appeals taken herein from an order and a judgment of the Supreme Court entered in the Office of the Clerk of the County of Erie on January 23, 2012, and having moved for other relief,
Now, upon reading and filing the affidavit of Joseph De Marie, Esq., sworn to May 31, 2012, the notice of motion with proof of service thereof, and the affidavit of Matthew W. Naparty, Esq., sworn to June 8, 2012, and due deliberation having been had thereon,
It is hereby ORDERED that the motion is denied, and the undertaking filed by the New York State Insurance Fund is deemed sufficient for purposes of securing a stay of enforcement of the judgment pending the determination of the appeal, on the condition that on or before July 20, 2012, the New York State Insurance Fund re-files and re-serves the same undertaking acknowledged in the form required to entitle a deed to be recorded.
Memorandum: Even assuming arguendo that the undertaking filed by the New York State Insurance Fund (State Insurance Fund) does not strictly comport with article 25 of the CPLR or CPLR 5519 (a) (2), this Court exercises its discretion to grant a stay of enforcement of the judgment pending the determination of the appeal, to treat the State Insurance Fund as a surety for purposes of that appeal, and to deem the undertaking given by the State Insurance Fund to be a sufficient condition for the stay (see CPLR 2502 [a]; 5519 [c]).
Entered: June 20, 2012
Frances E. Cafarell, Clerk