| ALBERT ORGANEK AS ADMINISTRATOR OF THE ESTATE OF MICHAEL ORGANEK, DECEASED, - V ANTONIO HARRIS |
| Motion No: NOS. CA 09-02577 AND CA 09-02578 |
| Slip Opinion No: 2010 NY Slip Op 62631(U) |
| Decided on January 27, 2010 |
| Appellate Division, Fourth Department, Motion Decision |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This motion is uncorrected and is not subject to publication in the Official Reports. |
PRESENT: SCUDDER, P. J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.
DOCKET NOS. CA 09-02577 AND CA 09-02578
| ALBERT ORGANEK AS ADMINISTRATOR OF THE ESTATE OF MICHAEL ORGANEK,
DECEASED, PLAINTIFF-RESPONDENT V ANTONIO HARRIS, DEFENDANT-APPELLANT. |
Plaintiff having moved to dismiss the appeals taken from an order of the Supreme Court entered in the Office of the Clerk of the County of Erie on December 16, 2008, and from an order and judgment of the Supreme Court entered in the Office of the Clerk of the County of Erie on May 29, 2009,
Now, upon reading and filing the affidavit of Justin S. White sworn to December 16, 2009, the notice of motion with proof of service thereof, the opposing affidavit of Antonio Harris sworn to December 31, 2009, and due deliberation having been had thereon,
It is hereby ORDERED that the motion insofar as it seeks dismissal of the appeals as untimely taken is denied; absent proof of service of the order and the order and judgment, with notice of entry, there is no basis upon which to conclude that the appeals are untimely, and
It is further ORDERED that the appeal from the order entered December 16, 2008, is dismissed on the ground that the right of direct appeal therefrom terminated with the entry of the final judgment in the action.
Memorandum: The appeal from the order and judgment entered May 29, 2009, brings up for review the order entered December 16, 2008.
Entered: January 27, 2010
Patricia L. Morgan, Clerk