New York Property Insurance Underwriting Association, Appellant, v. Morris Goldfeld, Individually and Doing Business as Goldfeld Realty & Rentals, Respondent; Public Service Mutual Insurance Company, Appellant, v. Morris Goldfeld, Individually and Doing Business as Goldfeld Realty & Rentals, Respondent

New York Property Insurance Underwriting Association, Appellant, v Morris Goldfeld, Individually and Doing Business as Goldfeld Realty & Rentals, Respondent. Public Service Mutual Insurance Company, Appellant, v Morris Goldfeld, Individually and Doing Business as Goldfeld Realty & Rentals, Respondent. [MAJORITY] Order unanimously affirmed, with costs. Memorandum: Plaintiffs, New York Property Insurance Underwriting Association and Public Service Mutual Insurance Company, brought these actions for restitution by the defendant, Morris Goldfeld, for payments made to him arising out of specified fire losses which occurred in properties owned by the defendant. He has been convicted of the crimes of arson and conspiracy to commit arson and has appealed those convictions. Plaintiffs appeal from the denial of their motion for summary judgment which Special Term ordered "without prejudice to renewal after termination of the pending criminal appeals”. Upon argument counsel for plaintiffs contended that if they were required to wait until the completion of the defendant’s appeal, the delay would give defendant an opportunity to dissipate his substantial real property assets and would frustrate plaintiffs’ effort to secure the return of the money which they paid to him prior to his convictions. Defendant’s counsel stated unequivocally that plaintiffs were fully protected, for they had secured the appointment of a receiver of all of defendant’s assets. We requested and have received a stipulation from the attorneys for the parties confirming that a receiver was appointed on August 13, 1976 of all of defendant’s real and personal property assets and that the receiver is still acting in that capacity. In the circumstances we believe that Special Term properly exercised its discretion in denying plaintiffs’ motion without prejudice. It is, therefore, unnecessary to reach any other question. (Appeal from order of Onondaga Supreme Court — summary judgment.) Present— Marsh, P. J., Moule, Dillon, Goldman and Witmer, JJ.