PRESENT: SMITH, J.P., CARNI, PINE, AND GORSKI, JJ.

DOCKET NOS. CA 09-01793 AND CA 10-00108

BERNARD GARRISI, II, PLAINTIFF-RESPONDENT, V ANN MARIE DEAN, AS EXECUTRIX OF THE ESTATE OF SANDY ROTUNDA, DECEASED, AND ROTUNDA PROPERTIES, L.L.C., DEFENDANTS-APPELLANTS.

Respondent having moved to dismiss the appeal taken from an order of the Supreme Court entered in the Office of the Clerk of the County of Erie on May 29, 2009, on the ground that the order has been superceded, and for other relief, and appellants have cross moved to adjourn oral argument, and for other relief,

Now, upon reading and filing the affidavit of Mark Della Posta sworn to January 11, 2010, the notice of motion with proof of service thereof, the opposing affirmation of Jeffrey P. Reisner dated January 14, 2010, 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, denied, and

It is further ORDERED that the cross motion to consolidate appeals taken from orders entered May 29, 2009 and January 11, 2010 is granted to the extent that the appeals are consolidated for the purposes of briefing and arguing the appeals on the condition that the appeal from the order entered January 11, 2010 is perfected on or before March 19, 2010, and

It is further ORDERED that the appeal from the order entered May 29, 2009 is hereby removed from the day calendar for January 26, 2010, and the two appeals shall be added to the calendar for the term of Court commencing May 17, 2010, and the cross motion is otherwise denied.

Entered: January 19, 2010

Patricia L. Morgan, Clerk