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

DOCKET NO. CA 11-00440

MARCONE APW, LLC, PLAINTIFF-RESPONDENT, V SERVALL COMPANY, KARL P. ROSENHAHN, AND MARK J. CREIGHTON, DEFENDANTS-APPELLANTS.

Appellants having moved, upon the return of an order to show cause granted by the Honorable Erin M. Peradotto on February 23, 2011, for a stay of all proceedings to enforce the order of the Supreme Court entered in the Office of the Clerk of the County of Erie on February 8, 2011, pending the hearing and determination of the appeal taken herein,

Now, upon reading and filing the affirmations of B. Kevin Burke, Jr., Esq. dated February 16, 2011, and March 4, 2011, the affidavit of Mark Rossi sworn to February 14, 2011, said show cause order with proof of service thereof, the affidavit of James J. Scheetz sworn to March 1, 2011, and the affirmation of Chad Flansburg, Esq. dated March 2, 2011, and due deliberation having been had thereon,

It is hereby ORDERED that the motion is granted to the extent that the order of the Supreme Court entered February 8, 2011, is modified, pending the hearing and determination of this appeal, by vacating the portion of the order enjoining Servall Company "from making any sales to any of the accounts it obtained between the dates of April 1, 2010 and August 31, 2010, including the two-hundred and three (203) accounts it has documented in this record, unless it can prove that it obtained the accounts without the use of plaintiff's Information," on the conditions that on or before March 25, 2011, defendants give an undertaking in the amount of $250,000 and perfect the appeal, in which case the appeal shall be added to the term of this Court commencing May 16, 2011, and

It is further ORDERED that the motion is otherwise denied.

Entered: March 10, 2011

Patricia L. Morgan, Clerk