| PAULA L. GIBBS V STATE FARM FIRE AND CASUALTY COMPANY (APPEAL NO. 2.) |
| Motion No: CA 17-02191 |
| Slip Opinion No: 2018 NY Slip Op 62422(U) |
| Decided on January 18, 2018 |
| 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: WHALEN, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.
DOCKET NO. CA 17-02191
| PAULA L. GIBBS, PLAINTIFF-APPELLANT, V STATE FARM FIRE AND
CASUALTY COMPANY, DEFENDANT-RESPONDENT. (APPEAL NO. 2.) |
Respondent having 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 Erie on October 2, 2017 (appeal No. 2), on the ground that the appeal was untimely taken,
Now, upon reading and filing the affirmation of Roy A. Mura, Esq., dated December 18, 2017, the notice of motion with proof of service thereof, and the affidavit of Paula L. Gibbs sworn to January 5, 2018, and due deliberation having been had thereon,
It is hereby ORDERED that the motion to dismiss the appeal is granted without prejudice to a motion to vacate dismissal of the appeal containing sworn proof demonstrating that appellant's diary of incoming mail maintained in the usual course of business did not contain any record of the order and notice of entry mailed on October 4, 2017, or other evidence sufficient to rebut the presumption that the order was served with notice of entry on October 4, 2017 (see
De Leonardis v Gaston Paving Co. Inc., 271 AD2d 839, 840 [3d Dept 2000]).
Entered: January 18, 2018
Mark W. Bennett, Clerk