PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.

DOCKET NO. CA 11-00396

THOMAS JOHNSON, INC., PLAINTIFF-APPELLANT-RESPONDENT, V THE STATE INSURANCE FUND, DEFENDANT-RESPONDENT-APPELLANT.

Sevenson Environmental Services, Inc. and Phillips Lytle, LLP having moved to dismiss defendant's cross appeal taken herein from an order of the Supreme Court entered in the Office of the Clerk of the County of Niagara on April 20, 2010, on the ground that defendant did not properly perfect the cross appeal, or, in the alternative, for an order allowing Sevenson Environmental Services, Inc. and Phillips Lytle, LLP to intervene in the pending appeals, and upon such leave being granted, permitting Sevenson Environmental Services, Inc. and Phillips Lytle, LLP to serve and file a brief,

Defendant cross-moves for an extension of time to file and serve a single brief in reply to responsive briefs of plaintiff, Sevenson Environmental Services, Inc., and Phillips Lytle, LLP,

Now, upon reading and filing the affidavit of William D. Christ, Esq., sworn to August 8, 2011, the affirmation of David B. Hamm, Esq., dated August 12, 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 the motion is dismissed as unnecessary (see 22 NYCRR 1000.12 [b]), and

It is further ORDERED that the cross motion is denied.

Entered: September 14, 2011

Patricia L. Morgan, Clerk