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

DOCKET NO. CA 08-01467

JOHN P. MERGLER, PLAINTIFF-RESPONDENT, V CSX TRANSPORATION, INC., DEFENDANT-APPELLANT.

Respondent 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 March 20, 2008, on the ground that appellant has failed to perfect timely the appeal, and appellant having cross-moved to consolidate that appeal with its appeal from a judgment of the same court entered October 3, 2007 (Docket No. CA 08-01521) and for an extension of time to perfect the appeals,

Now, upon reading and filing affirmation of Michael R. Torcello dated July 8, 2008, the notice of motion with proof of service thereof, the opposing affidavit of J. Christine Chiriboga sworn to July 16, 2008, the notice of cross motion with proof of service thereof, and due deliberation having been had thereon,

It is hereby ORDERED that the motion be, and the same hereby is, granted and the appeal from the judgment entered March 20, 2008 is dismissed without further order unless the appeal is perfected on or before September 19, 2008, and

It is further ORDERED that the cross motion be, and the same hereby is, granted and the appeals from the judgments entered March 20, 2008 and October 3, 2007 are hereby consolidated for the purposes of perfecting and arguing the appeals.

Entered: July 21, 2008

JoAnn M. Wahl, Clerk