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

DOCKET NO. CA 09-00452

SUSAN BEATON, PLAINTIFF-RESPONDENT, V PATRICK BEATON, 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 Ontario on November 7, 2008, on the ground that appellant has failed to perfect timely the appeal, and appellant having cross-moved for permission to proceed as a poor person, and for other relief,

Now, upon reading and filing the affirmation of David A. Merkel dated March 4, 2009, the notice of motion with proof of service thereof, the opposing affidavit of John A. Schuppenhauer sworn to March 11, 2009, the opposing affidavit of Patrick Beaton sworn to March 11, 2009, the notice of cross motion with proof of service thereof, the reply affirmation of David A. Merkel dated March 12, 2009, and due deliberation having been had thereon,

It is hereby ORDERED that the motion be, and the same hereby is, granted and the appeal is dismissed without further order unless the appeal is perfected on or before May 15, 2009, and

It is further ORDERED that the cross motion be, and the same hereby is, denied, with leave to renew upon proof of service on the Ontario County Attorney (see CPLR 1101 [c]; 22 NYCRR 1000.14 [a] [3]).

Entered: March 17, 2009

JoAnn M. Wahl, Clerk