| STEPHEN GIOIA, JR. AND SUSAN GIOIA, V CARL R. BECKWITH, , DANIEL P. JOHNSON AND RHONDA M. COLE |
| Motion No: CA 10-01303 |
| Slip Opinion No: 2010 NY Slip Op 77515(U) |
| Decided on July 16, 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 CARNI, JJ.
DOCKET NO. CA 10-01303
| STEPHEN GIOIA, JR. AND SUSAN GIOIA,
PETITIONERS-APPELLANTS-RESPONDENTS, V CARL R. BECKWITH, DEFENDANT-RESPONDENT-APPELLANT, DANIEL P. JOHNSON AND RHONDA M.
COLE, DEFENDANTS-RESPONDENTS. |
Respondents Rhonda M. Cole and Daniel P. Johnson separately having moved to dismiss the appeals taken from the decision of the Supreme Court dated December 23, 2009, on the grounds that the appeals were improperly taken from a decision, that notices of appeal from the order of the Supreme Court entered in the office of the Clerk of Oswego County on February 1, 2010 were never filed and served, and that the appeals have not been perfected timely,
Now, upon reading and filing the affidavits of Michael T. Coutu, Esq. sworn to May 28, 2010 and June 17, 2010, the affidavits of Joseph R. Pancheco, II, Esq. sworn to June 10, 2010 and June 15, 2010, the notices of motion with proof of service thereof, the affidavit of Kristin A. Shanley, Esq. sworn June 11, 2010, the affirmation of Laurence D. Behr, Esq. dated June 15, 2010, and due deliberation having been had thereon,
It is hereby ORDERED that the motion is denied insofar as it seeks to dismiss the appeals for failure to timely file and serve notices of appeal, and the notices of appeal are deemed valid notices of appeal from the order of the Supreme Court entered February 1, 2010 (see CPLR 5520 [c]; Ponzi v Ponzi, 45 AD3d 1327; Matter of Freeman, 198 AD2d 897), and
It is further ORDERED that the motion insofar as it seeks to dismiss appellants-respondents' appeal for failure to perfect timely is granted, and the appeal is dismissed without further order unless the appeal is perfected on or before September 14, 2010, and
It is further ORDERED that the motion insofar as it seeks to dismiss respondent-appellant's cross appeal for failure to perfect timely is granted, and the cross appeal is dismissed without further order unless the cross appeal is perfected on or before October 14, 2010.
Entered: July 16, 2010
Patricia L. Morgan, Clerk