Opinion
Motion No: 2017-01604 ORC
02-06-2018
Kenneth L. Bunting, Esq., Respondent, v. Frank Cervera, Appellant.
BRUCE E. TOLBERT
JERRY GARGUILO, JJ.
DECISION & ORDER ON MOTION
Motion by appellant on an appeal from an order of the Justice Court of the Town of Minisink, Orange County, entered July 13, 2017, to strike the respondent's brief in whole or in part, and for clarification of a decision and order on motion of this court dated September 5, 2017 granting appellant's motion for a stay.
Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it is
ORDERED that the branch of the motion seeking to strike the respondent's brief in whole or in part, is denied, as, in determining the appeal, this court will not consider matters dehors the record (see Chimarios v Duhl, 152 AD2d 508 [1989]); and it is further,
ORDERED that the branch of the motion seeking clarification of this court's decision and order on motion dated September 5, 2017 is granted to the extent of clarifying that only appellant's obligation to pay respondent that portion of the judgment which remains unpaid is stayed pending the determination of the appeal.
We note that, in the event that appellant prevails upon appeal, he may apply to this court pursuant to CPLR 5523 for restitution of the monies lost as a result of the enforcement of the judgment.
ENTER:
Paul Kenny
Chief Clerk