Matter of State Farm Mutual Automobile Insurance Company v Fedor Pridhodko

Matter of State Farm Mut. Auto. Ins. Co. v Pridhodko 2006 NY Slip Op 05973 [31 AD3d 775] July 25, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 20, 2006

In the Matter of State Farm Mutual Automobile Insurance Company, Respondent,
v
Fedor Pridhodko, Appellant.

—[*1]In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for underinsured motorist benefits, Fedor Pridhodko appeals from an order of the Supreme Court, Kings County (Douglass, J.), dated June 23, 2005, which granted the petitioner's motion, inter alia, to stay arbitration pending completion of discovery.

Ordered that the appeal is dismissed as academic, without costs or disbursements.

The appellant's filing of a notice of appeal from the order dated June 23, 2005, did not result in an automatic stay of enforcement of that order (see CPLR 5518, 5519 [a]; Governale v Porsche-Audi of Bay Ridge, 97 AD2d 457 [1983]; Carbillano v Ross, 90 AD2d 491 [1982]). The petitioner thereafter moved for a permanent stay of arbitration based on the appellant's failure to comply with the directives in the order appealed from. By order dated November 2, 2005, the Supreme Court granted the petitioner's motion on default, thereby rendering the instant appeal academic.

Motion by the respondent, inter alia, to dismiss an appeal from an order of the Supreme Court, Kings County, dated June 23, 2005. By decision and order on motion of this Court dated March 28, 2006, that branch of the motion which was to dismiss the appeal was held in abeyance and was referred to the Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion, the papers filed in opposition thereto, and upon the submission of the appeal, it is

Ordered that that branch of the motion which was to dismiss the appeal is denied as academic in light of this Court's determination on the appeal. Adams, J.P., Goldstein, Fisher and Lifson, JJ., concur.