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

DOCKET NO. CA 11-02090
DOCKET NO. CA 11-02091

STEPHEN APPLEBEE, PLAINTIFF-APPELLANT, V COUNTY OF CAYUGA, DEFENDANT-RESPONDENT, COUNTY OF CAYUGA, DEFENDANT/THIRD-PARTY PLAINTIFF, V VILLAGE OF PORT BYRON, THIRD-PARTY DEFENDANT-RESPONDENT. (APPEAL NO. 1.) STEPHEN APPLEBEE, PLAINTIFF-APPELLANT, V COUNTY OF CAYUGA, DEFENDANT-RESPONDENT, ———————————————————— COUNTY OF CAYUGA, DEFENDANT/THIRD-PARTY PLAINTIFF, V VILLAGE OF PORT BYRON, THIRD-PARTY DEFENDANT-RESPONDENT. (APPEAL NO. 2.)

Defendant County of Cayuga having moved to dismiss the appeals taken herein from a judgment and an order of the Supreme Court entered in the Office of the Clerk of the County of Cayuga on February 9, 2011 (Appeal No. 1), and September 6, 2011 (Appeal No. 2), on the grounds that Appeal No. 1 was not timely taken and Appeal No. 2 is taken from an unappealable, intermediate, order,

Now, upon reading and filing the affirmation of Andrew J. Schwab, Esq., dated October 10, 2011, the notice of motion with proof of service thereof, and the affirmation of Jeffrey G. Pomeroy, Esq., dated October 21, 2011, and due deliberation having been had thereon,

It is hereby ORDERED that the motion insofar as it seeks to dismiss the appeal from the judgment entered February 9, 2011, is denied with leave to raise the issue in the briefs, and

It is further ORDERED that the motion insofar as it seeks to dismiss the appeal from the order entered September 6, 2011, is denied.

Entered: October 28, 2011

Patricia L. Morgan, Clerk