PRESENT: MARTOCHE, J. P., PERADOTTO, LINDLEY, PINE, AND GORSKI, JJ.

DOCKET NO. CA 10-01655

ROCHESTER LINOLEUM & CARPET CENTER, INC. DOING BUSINESS AS ROCHESTER FLOORING RESOURCE, PLAINTIFF-RESPONDENT-APPELLANT, V PUTRELO CONSTRUCTION COMPANY, INC., DEFENDANT-APPELLANT- RESPONDENT.

Defendant-appellant Putrelo Construction Company, Inc. having moved for an extension of time for both parties to perfect their appeals taken from a decision of the Supreme Court entered in the Office of the Clerk of the County of Oneida on November 16, 2009, and an order of the same Court entered in the Office of the Clerk of the County of Oneida on May 18, 2010,

Now, upon reading and filing the affirmation of David A. Eghigian, Esq. dated July 26, 2010, the notice of motion with proof of service thereof, and due deliberation having been had thereon,

It is hereby ORDERED that the premature appeals from the decision entered November 16, 2009, are deemed to be a valid appeals from the order of the Supreme Court entered in the Office of the Clerk of the County of Oneida on May 24, 2010 (see CPLR 5520 [c]), and

It is further ORDERED that the motion is granted to the extent that defendant shall perfect its appeal from the May 24, 2010 order on or before October 19, 2010, and, in the event of failure to so perfect, the appeal is hereby dismissed without further order, and

It is further ORDERED that plaintiff shall perfect its cross appeal from the May 24, 2010 order on or before November 18, 2010, and in the event of failure to so perfect, the cross appeal is dismissed without further order, and

It is further ORDERED that the appeal from the order entered May 18, 2010 is dismissed on the ground that an order denying a motion to reargue is not appealable (see Empire Ins. Co. v Food City, 167 AD2d 983, 984), and

It is further ORDERED that the motion insofar as it seeks an extension of time to perfect the appeal from the order entered on May 18, 2010, is hereby dismissed.

Entered: August 20, 2010

Patricia L. Morgan, Clerk