PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.

DOCKET NO. CA 10-00367

DANIEL C. OAKES AND LISA M. OAKES, PLAINTIFFS-RESPONDENTS, V RAJNIKANT PATEL, M.D., SATISH K. MONGIA, M.D., AND KALEIDA HEALTH, AS SUCCESSOR IN INTEREST TO MILLARD FILLMORE HOSPITALS, DOING BUSINESS AS MILLARD FILLMORE SUBURBAN HOSPITAL, DEFENDANTS-APPELLANTS.

Appellant Kaleida Health having moved for an order, pursuant to CPLR 5518 and 22 NYCRR 1000.13, vacating the order entered in the Office of the Clerk of the County of Erie on February 12, 2010 enjoining appellant Kaleida Health from pursuing litigation in the courts of Pennsylvania during the pendency of the appeal in this matter, and for other relief, appellant Dr. Patel having moved for an order reducing the respondents' claim against appellant Dr. Patel and dismissing Kaleida Health's cross claim against appellant Dr. Patel pursuant to General Obligations Law § 15-108, and for other relief, appellant Dr. Mongia having moved for an order preserving to him any and all rights as to his appeal from the judgment filed in this action on the issue of the trial court's alleged error in, inter alia, denying appellant Dr. Mongia's motion for leave to amend his pleading to add GOL 15-108 as an affirmative defense, and for other relief, respondents' having cross-moved for injunctive relief to dismiss appellant Kaleida Health's appeal, and for other relief,

Now, upon reading and filing the affidavit of Amy Archer Flaherty sworn to February 12, 2010, the affidavit of Ann M. Campbell sworn to February 19, 2010, the affidavit of Elizabeth G. Adymy sworn to February 18, 2010, the notices of motion with proofs of service thereof, the affidavit of Stephen C. Baker sworn to February 17, 2010, the opposing affidavit of Kathleen J. Martin sworn to February 24, 2010, the notice of cross motion and proof of service thereof, the reply affidavit of Amy Archer Flaherty sworn to February 26, 2010, and due deliberation having been had thereon,

DOCKET NO. CA10-00367

MARCH 9, 2010

PAGE 2

It is hereby ORDERED that appellant Kaleida Health's motion to vacate the injunction is denied,

It is further ORDERED that order entered in the Office of the Clerk of the County of Erie on February 12, 2010 enjoining appellant Kaleida Health is modified to the extent that respondents are hereby required to post an undertaking in the amount of $50,000 on or before April 9, 2010,

It is further ORDERED that respondents' cross motion to dismiss for failure to perfect is granted and appellant Kaleida Health's appeal is dismissed without further order unless the appeal is perfected on or before May 10, 2010,

It is further ORDERED that respondents' cross motion is otherwise denied.

It is further ORDERED that appellants Dr. Patel's and Dr. Mongia's motions are hereby denied as premature.

Entered: March 9, 2010

Patricia L. Morgan, Clerk