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

DOCKET NO. CA 07-01883

MICHAEL ORLIKOWSKI AND JENNIFER ORLIKOWSKI, PLAINTIFFS-RESPONDENTS, V CORNERSTONE COMMUNITY FEDERAL CREDIT UNION AND HBE CORPORATION, DEFENDANTS-APPELLANTS.

Respondents having moved to dismiss the appeal taken from a judgment of the Supreme Court entered in the Office of the Clerk of the County of Erie on May 9, 2007, on the ground that appellants have failed to perfect timely the appeal, and appellants having cross-moved to dismiss an appeal of third-party defendant Thomas Johnson, Inc. from an order and judgment of the same Court entered August 9, 2007 (docket No. CA 07-01893) on the ground, inter alia, that the order and judgment was entered on default and is not appealable,

Now, upon reading and filing the affidavit of Patrick J. Brown sworn to

September 6, 2007, the notice of motion with proof of service thereof, the opposing affidavit of Gerald T. Walsh sworn to September 19, 2007, the notice of cross motion with proof of service thereof, the reply affirmation of Michael J. Pastrick dated October 7, 2007, and due deliberation having been had thereon,

It is hereby ORDERED that the motion be, and the same hereby is, granted and the appeal in docket No. CA 07-01883 is dismissed without further order unless the appeal is perfected on or before December 17, 2007, and

It is further ORDERED that the cross motion be, and the same hereby is, granted to the extent that the appeal in docket No. CA 07-01893 is dismissed without further order unless that appeal is perfected on or before December 17, 2007, and the cross motion is otherwise denied.

Entered: October 18, 2007

JoAnn M. Wahl, Clerk