Opinion
DOCKET NO. CA 12-02035
03-04-2013
POLYFUSION ELECTRONICS, INC., PLAINTIFF-RESPONDENT-APPELLANT, v. PROMARK ELECTRONICS, INC., AND ROBERT GATHERCOLE, DEFENDANTS-APPELLANTS-RESPONDENTS.
PRESENT: , J.P., FAHEY, PERADOTTO, LINDLEY, AND WHALEN, JJ.
Plaintiff having moved to dismiss defendants' appeal on the ground that the appeal is moot, or, in the alternative, for an extension of time to perfect its cross appeal and to file and serve a respondent's brief addressing both the appeal and the cross appeal taken herein from a judgment of the Supreme Court entered in the Office of the Clerk of the County of Erie on December 22, 2011,
Now, upon reading and filing the affidavit of Lawrence C. Brown, Esq., sworn to January 10, 2013, the notice of motion with proof of service thereof, and the affidavit of Andrew J. Ryan, Esq., sworn to January 17, 2013, and due deliberation having been had thereon,
It is hereby ORDERED that the motion insofar as it seeks to dismiss defendants' appeal is denied with leave for the parties to discuss the issue of mootness in their briefs and for plaintiff to renew the motion at oral argument, and
It is further ORDERED that the motion insofar as it seeks an extension of time for plaintiff to perfect its cross appeal is granted and plaintiff shall perfect its cross appeal on or before March 25, 2013, and, in the event of failure to so perfect, the cross appeal is hereby dismissed without further order, and
It is further ORDERED that the motion insofar as it seeks an extension of time to file and serve a respondent's brief is granted on the condition that the brief is filed and served on or before March 25, 2013, and the Clerk is directed to accept the brief for filing, and
It is further ORDERED that defendants' reply briefs shall be filed and served on or before April 9, 2013, and
It is further ORDERED that the appeal is removed from the Court's day calendar for April 2, 2013, and added to the calendar for the term commencing May 13, 2013.
Frances E. Cafarell, Clerk