PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, GREEN, AND GORSKI, JJ.

DOCKET NOS. CA 10-00268 AND CA 10-00269

FAC CONTINENTAL LLC, PLAINTIFF-APPELLANT-RESPONDENT, V YICKJING567 LLC, DEFENDANT-RESPONDENT-APPELLANT.

Defendant having moved for an order directing that the Clerk accept defendant's respondent's brief, dismiss plaintiff's consolidated appeals, and issue a new scheduling order for plaintiff's appeal in appeals taken from orders of the Supreme Court entered in the Office of the Clerk of the County of Erie on April 30, 2009, and October 14, 2009,

Now, upon reading and filing the affirmation of Dean M. Drew, Esq. dated June 24, 2010, the notice of motion with proof of service thereof, the affirmation of Lindsay M. Swensen, Esq. dated July 12, 2010, and due deliberation having been had thereon,

It is hereby ORDERED that the motion insofar as it seeks an order directing the Clerk to accept defendant's respondent's brief for filing is granted on the condition that a "red" respondent's brief is filed and served on or before August 26, 2010, and the Clerk is directed to accept the brief for filing, and

It is further ORDERED that the motion insofar as it seeks to dismiss plaintiff's consolidated appeals is denied, and

It is further ORDERED that the motion insofar as it seeks a scheduling order for plaintiff's appeal is granted, and plaintiff's reply brief shall be filed and served on or before September 9, 2010, and

It is further ORDERED that plaintiff's respondent's brief shall be filed and served on or before September 9, 2010, and

It is further ORDERED that defendant's reply brief shall be filed on or before September 27, 2010.

Entered: August 19, 2010

Patricia L. Morgan, Clerk