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

DOCKET NO. CA 09-02001

MICHAEL GRUNINGER AND NINA GRUNINGER, PLAINTIFFS-APPELLANTS, V NATIONWIDE MUTUAL INSURANCE COMPANY, NATIONWIDE MUTUAL FIRE INSURANCE COMPANY AND JEFFREY HARMER, DEFENDANTS-RESPONDENTS.

Appellants having moved to settle the record on the appeal taken from an order of the Supreme Court entered in the Office of the Clerk of the County of Onondaga on March 30, 2009, and to amend the notice of appeal, and respondents Nationwide Mutual Insurance Company and Nationwide Mutual Fire Insurance Company having cross-moved to dismiss the appeal for failure to file the notice of appeal and failure to perfect the appeal timely,

Now, upon reading and filing the affidavit of David A. Kalabanka sworn to October 2, 2009, the notice of motion with proof of service thereof, the opposing affirmation of Jennifer V. Schiffmacher dated October 9, 2009, the notice of cross motion with proof of service thereof, the reply affidavit of David A. Kalabanka sworn to October 15, 2009, the supplemental affidavit of David A. Kalabanka sworn to October 16, 2009, and due deliberation having been had thereon,

It is hereby ORDERED that the motion be, and the same hereby is, granted to the extent that the notice of appeal is hereby deemed amended so as to contain the correct index number, and the motion is otherwise denied (see 22 NYCRR 1000.4 [a] [1] [ii]), and

It is further ORDERED that the cross motion be, and the same hereby is, granted to the extent that the appeal is dismissed without further order unless the appeal is perfected on or before December 21, 2009, and the cross motion is otherwise denied (see Matter of Baker, 149 AD2d 986 [1989]).

Entered: October 21, 2009

Patricia L. Morgan, Clerk