PRESENT: SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.

DOCKET NO. CA 15-01589

IN THE MATTER OF VILLAGE OF PULASKI, PETITIONER-RESPONDENT, V ROBERT M. WEICHERT, ASSIGNEE OF ROBERT S. WEICHERT, RESPONDENT-APPELLANT.

Robert M. Weichert, on behalf of appellant, having moved for a stay of all proceedings in this matter pending in Supreme Court, Oswego County, under Index No. C-2014-1732, and having moved for assignment of counsel pursuant to Military Law §§ 303 and 304, and

Petitioner having cross-moved to dismiss the appeal taken herein from an order of the Supreme Court entered in the Office of the Clerk of the County of Oswego on July 1, 2015, on the ground that appellant failed to perfect timely the appeal,

Now, upon reading and filing the affidavit of Robert M. Weichert sworn to September 17, 2015, the affirmation of Christopher M. Militello, Esq., dated October 2, 2015, the affirmations of Robert E. Genant, Esq., dated October 2, 2015, and October 6, 2015, and the notices of motion and cross motion with proof of service thereof, and due deliberation having been had thereon,

It is hereby ORDERED that appellant's motion insofar as it seeks a stay is granted, without prejudice to a motion to vacate upon a showing that appellant's military service does not materially affect his ability to conduct his defense (see Warshawsky v Warshawsky, 215 AD2d 374 [2nd Dept 1995]), and

It is further ORDERED that appellant's motion insofar as it seeks assignment of counsel is denied, and

It is further ORDERED that petitioner's cross motions are dismissed.

Memorandum: Assignment of counsel is not available.

Entered: October 20, 2015

Frances E. Cafarell, Clerk