Opinion
Motion No: CA 12-00733
05-25-2012
ROBERT LA BEEF, PLAINTIFF-APPELLANT, v. STEVEN H. BAITSELL, INDIVIDUALLY AND AS AN EMPLOYEE OF FLOWERS BY MR. JOHN, AND SEAN PELKEY, DOING BUSINESS AS FLOWERS BY MR. JOHN, DEFENDANTS-RESPONDENTS.
PRESENT: , P. J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.
Respondents having moved to dismiss the appeal taken herein from an order of the Supreme Court entered in the Office of the Clerk of the County of Oswego on July 11, 2011, on the ground that appellant has failed to serve timely the notice of appeal and failed to perfect timely the appeal, and appellant having cross-moved for an extension of time to perfect the appeal and for other relief,
Now, upon reading and filing the affidavits of Kristin L. Norfleet, Esq., sworn to April 16, 2012, and April 18, 2012, the affidavit of P. Michael Shanley, Esq., sworn to April 23, 2012, and the notices of motion and cross motion with proof of service thereof, and due deliberation having been had thereon,
It is hereby ORDERED that respondents' motion insofar as it seeks to dismiss the appeal for failure to take timely an appeal is denied without prejudice to a new motion including respondent's proof of service of a copy of the order entered July 11, 2011, with notice of entry, and
It is further ORDERED that respondents' motion insofar as it seeks dismissal for failure to perfect timely the appeal, is granted and the appeal is dismissed without further order unless the appeal is perfected on or before July 24, 2012, and
It is further ORDERED that the cross motion is dismissed as unnecessary.
Frances E. Cafarell, Clerk