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

DOCKET NO. CA 11-01422

STANLEY J. CIURA, AS EXECUTOR OF THE ESTATE OF IRENE CIURA, DECEASED, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, AND ROBERT H. MATHEIS AND NAOMI MATHEIS, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PETITIONERS-RESPONDENTS, V RICHARD MUTO, DEBORAH M. MUTO, ALSO KNOWN AS DEBORAH MARA MUTO, DEBRICK TRUST, AND BHG ASSET MANAGEMENT TRUST, RESPONDENTS-APPELLANTS, AND JOHN HANCOCK LIFE INSURANCE COMPANY (U.S.A.), JOHN HANCOCK LIFE INSURANCE COMPANY, AND JOHN HANCOCK LIFE INSURANCE COMPANY OF NEW YORK, RESPONDENTS-RESPONDENTS,

Lindsay M. Muto, Sarah C. Muto, and Richard M. Muto (movants) having separately moved for permission to proceed as a poor person and assignment of counsel on the appeal taken herein from an order of the Supreme Court entered in the Office of the Clerk of the County of Erie on May 5, 2011, and petitioners having cross-moved for dismissal of the appeal on the ground that the appeal was not timely filed, and for other relief,

Now, upon reading and filing the affidavits of Lindsay M. Muto, sworn to June 4, 2011, the affidavit of Sarah C. Muto sworn to June 4, 2011, the affidavit of Richard M. Muto sworn to June 15, 2011, the affidavit of Andrew J. Stimson, Esq., sworn to August 3, 2011, and the notices of motion and cross motion with proof of service thereof, and due deliberation having been had thereon,

It is hereby ORDERED that petitioners' cross motion is granted to the extent that the appeal is dismissed, without costs, on the ground that appellants failed to perfect timely the appeal, and

It is further ORDERED that the motions and the cross motion are otherwise dismissed as moot.

Entered: August 15, 2011

Patricia L. Morgan, Clerk