| IN THE MATTER OF NATIONAL FUEL GAS DISTRIBUTION CORPORATION, V CITY OF JAMESTOWN, . |
| Motion No: CA 12-00624 |
| Slip Opinion No: 2012 NY Slip Op 74204(U) |
| Decided on May 23, 2012 |
| Appellate Division, Fourth Department, Motion Decision |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This motion is uncorrected and is not subject to publication in the Official Reports. |
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND CARNI, JJ.
DOCKET NO. CA 12-00624
| IN THE MATTER OF NATIONAL FUEL GAS DISTRIBUTION CORPORATION,
PETITIONER-PLAINTIFF-RESPONDENT, V CITY OF JAMESTOWN, RESPONDENT-DEFENDANT-APPELLANT. |
National Fuel Gas Distribution Corporation (movant) having moved to dismiss the appeal taken herein from an order of the Supreme Court entered in the Office of the Clerk of the County of Erie on January 23, 2012, on the ground that the order is not appealable, and having moved for other relief,
Now, upon reading and filing the affidavits of John G. Schmidt, Jr., Esq., sworn to April, 3, 2012, April 5, 2012, and April 20, 2012, the notice of motion with proof of service thereof, and the affidavit of Stephen A. Sharkey, Esq., sworn to April 16, 2012, and due deliberation having been had thereon,
It is hereby ORDERED that the motion is denied, and
It is further ORDERED that City of Jamestown is hereby granted permission to appeal.
Memorandum: "Even assuming, arguendo, that [movant] is correct that . . . the order is not appealable as of right, we exercise our discretion to deem the notice of appeal . . . to be an application pursuant to CPLR 5701 (c) for permission to appeal, and we grant such permission" (Mayer v Hoang, 83 AD3d 1516, 1518 [citations omitted]).
Entered: May 23, 2012
Frances E. Cafarell, Clerk