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

DOCKET NO. CA 07-01431

MATTER OF JAMES E. PENNINGTON, PETITIONER-APPELLANT, V JAMES WOYTASH, MD, DDS, ERIE COUNTY MEDICAL EXAMINER, RESPONDENT-RESPONDENT.

Appellant having moved for permission to proceed as a poor person on the appeal taken herein from an order of the Supreme Court entered in the Office of the Clerk of the County of Erie on May 15, 2007, and for an extension of time to perfect the appeal, and respondent having cross-moved to dismiss the appeal as untimely,

Now, upon reading and filing the affidavits of James E. Pennington sworn to February 29, 2008 and March 19, 2008, the notices of motion with proof of service thereof, the opposing affidavit of George Michael Zimmermann sworn to March 28, 2008, the notice of cross motion with proof of service thereof, the reply affidavit of James E. Pennington sworn to April 4, 2008, and due deliberation having been had thereon,

It is hereby ORDERED that the motions be, and the same hereby are, granted, and

It is further ORDERED that the Clerk of the County of Erie is hereby directed to provide appellant with a stenographic copy of the minutes upon which the appeal is based and

It is further ORDERED that appellant shall pay costs and fees and any sum expended by the County of Erie in providing the aforesaid stenographic copy out of any recovery by judgment or settlement, and

It is further ORDERED that appellant shall perfect the appeal on or before July 14, 2008 and, in the event of failure to so perfect, the appeal is hereby dismissed without further order, and

It is further ORDERED that the cross motion be, and the same hereby is, denied.

Entered: May 14, 2008

JoAnn M. Wahl, Clerk