Opinion
Motion No: CA 11-01863
10-26-2011
MARCIA G. BRYNDLE, PLAINTIFF-APPELLANT, v. JOSEPH J. KNAB, DEFENDANT-APPELLANT, AND THOMAS E. KNAPP, DEFENDANT-RESPONDENT.
PRESENT: , P. J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.
Respondent having moved for an order dismissing plaintiff's appeal taken herein from an order of the Supreme Court entered in the Office of the Clerk of the County of Erie on April 18, 2011, on the ground that plaintiff failed to properly and timely take an appeal pursuant to CPLR 5515 (1), dismissing both appellants' appeals from the order entered April 18, 2011, for failure to perfect timely the appeals, and granting other relief,
Plaintiff having cross-moved for an extension of time to perfect her appeal from the order entered April 18, 2011, and for other relief,
Now, upon reading and filing the affidavit of Amanda L. Machacek, Esq., sworn to September 1, 2011, the affidavit of C. Daniel McGuillicuddy, Esq., sworn to September 14, 2011, the notices of motion and cross motion with proof of service thereof, and the affirmation of Daniel J. Guarasci, Esq., dated September 23, 2011, and due deliberation having been had thereon,
It is hereby ORDERED that respondent's motion insofar as it seeks to dismiss plaintiff's appeal for failure to properly and timely take an appeal is denied, and
It is further ORDERED that plaintiff's appeal is deemed to be timely filed and served, and
It is further ORDERED that respondent's motion insofar as it seeks to dismiss both plaintiff's and defendant-appellant's appeals is granted and the appeals are dismissed without further order unless the appeals are perfected on or before December 27, 2011, and
It is further ORDERED that plaintiff's cross motion is dismissed as unnecessary.
Patricia L. Morgan, Clerk