Opinion
Motion No: CA 12-00802 DOCKET NO. CA 12-00803
05-23-2012
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.)
PRESENT: , P. J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.
Respondents having moved to dismiss the appeals on the ground that appellants have failed to perfect timely the appeals, to vacate a stay issued by Supreme Court pursuant to CPLR 5519 (b), and to expedite 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 April 30, 2012, the notice of motion with proof of service thereof, the affirmation of Matthew W. Naparty, Esq., dated May 10, 2012, and the affidavit of Melanie S. Wolk, Esq., sworn to May 11, 2012, and due deliberation having been had thereon,
It is hereby ORDERED that the motion insofar as it seeks to vacate the stay issued by Supreme Court pursuant to CPLR 5519 (b) is granted, without prejudice to a stay pursuant to CPLR 5519 (a) (2), and
It is further ORDERED that the motion insofar as it seeks to dismiss the appeals is granted and the appeals are dismissed without further order unless the appeals are perfected on or before July 23, 2012, and
It is further ORDERED that the motion insofar as it seeks to expedite the appeals is dismissed as premature (see 22 NYCRR 1000.10 [d]).
Memorandum: We grant the motion and vacate Supreme Court's stay issued pursuant to CPLR 5519 (b), without prejudice to a stay pursuant to CPLR 5519 (a) (2). CPLR 5519 (b) applies when an appeal is taken in an action "defended by an insurance corporation, or other insurer, on behalf of the insured under a policy of insurance the limit of liability of which is less than the amount of [the] judgment or order" (emphasis added). The New York State Insurance Fund (State Insurance Fund), however, states that the policy at issue "contains no monetary limit." In addition, the State Insurance Fund states that its "policy will pay that portion of the sum recovered or directed to be paid by the [d]efendants, by virtue of the judgment or the part thereof as to which it is affirmed." CPLR 5519 (b) therefore does not apply in this situation because the limit of liability under this policy is not less than the amount of the judgment.
Frances E. Cafarell, Clerk