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

DOCKET NO. CA 09-02486

BRIAN RAULS, PLAINTIFF-RESPONDENT, V DIRECTV, INC., DEFENDANT-APPELLANT.

Appellant having moved, upon the return of an order to show cause granted by the Honorable Eugene M. Fahey on September 8, 2010, to vacate the dismissal of the appeal taken herein from an order of the Supreme Court entered in the Office of the Clerk of the County of Erie on November 9, 2009, and for other relief,

Now, upon reading and filing the affirmation of Keith N. Bond, Esq. dated September 7, 2010, the affirmation of Keith N. Bond, Esq. received September 8, 2010, the affirmation of Robert A. Lippman, Esq. dated September 8, 2010, said show cause order with proof of service thereof, the affidavit of Harry J. Forrest, Esq. sworn to September 10, 2010, the affirmation of Kenneth P. Bernas, Esq. dated September 10, 2010, and due deliberation having been had thereon,

It is hereby ORDERED that the dismissal of the appeal taken herein is vacated and appellant shall perfect its appeal on or before November 15, 2010, and, in the event of failure to so perfect, the appeal is hereby dismissed without further order, and

It is further ORDERED that the appeal taken herein from the order entered November 9, 2009 is deemed to be an appeal from the order and judgment of the Supreme Court entered in the Office of the Clerk of the County of Erie on November 9, 2009, and

It is further ORDERED that all proceedings to enforce the order and judgment entered November 9, 2009 are hereby stayed on the condition that appellant gives an undertaking pursuant to CPLR 5519 (a) on or before September 29, 2010.

Entered: September 15, 2010

Patricia L. Morgan, Clerk