PRESENT: SCUDDER, P.J., HURLBUTT, GORSKI, MARTOCHE, AND SMITH, JJ.

DOCKET NO. CA 06-03403

MARY HERBST AND JEFFREY HERBST, PLAINTIFFS-APPELLANTS-RESPONDENTS, V MARK MARSHALL, DEFENDANT-RESPONDENT-APPELLANT. (ACTION NO. 1.)

Respondent-appellant having moved to vacate the dismissal of the cross appeal taken herein from an order of the Supreme Court entered in the Office of the Clerk of the County of Niagara on October 25, 2006, and appellant-respondent having cross-moved for an extension of time to file and serve a reply brief,

Now, upon reading and filing the affirmation of Leo T. Fabrizi dated November 21, 2007, the notice of motion with proof of service thereof, the affirmation of Debra A. Norton dated September 26, 2007, the notice of cross motion with proof of service thereof, the reply affirmation of Leo T. Fabrizi dated September 27, 2007, and due deliberation having been had thereon,

It is hereby ORDERED that the motion be, and the same hereby is, granted and the brief filed by respondent-appellant shall be considered as both a respondent's brief and an appellant's brief, and

It is further ORDERED that the cross motion be, and the same hereby is, granted on condition that the reply brief is filed and served on or before October 18, 2007, and the Clerk is directed to accept the reply brief for filing, and

It is further ORDERED that surreply briefs, if any, shall be filed and served on or before November 2, 2007.

Entered: October 1, 2007

JoAnn M. Wahl, Clerk