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

DOCKET NO. CA 12-01668

PAUL BANKO AND LINDA BANKO, PLAINTIFFS-APPELLANTS, V COUNTRY CLUB HOMES, LLC AND FOREST RIVER HOUSING, INC., AS SUCCESSOR TO HART HOUSING GROUP, DEFENDANTS-RESPONDENTS. COUNTRY CLUB HOMES, LLC, THIRD-PARTY PLAINTIFF, V FOREST RIVER HOUSING, INC., AS SUCCESSOR TO HART HOUSING GROUP, THIRD-PARTY DEFENDANT.

Appellants having moved to add documents to the record on the appeal taken from an order of the Supreme Court entered in the Office of the Clerk of the County of Allegany on March 20, 2012, and defendant Forest River Housing, Inc., as successor to Hart Housing Group, having cross-moved to dismiss the appeal from the order entered March 20, 2012, on the ground that appellants have failed to perfect timely the appeal,

Now, upon reading and filing the affidavit and statement of Paul Banko and Linda Banko sworn to September 5, 2012, the affidavit of Lawrence LeClair, Esq., sworn to September 13, 2012, 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 appellants' motion is denied without prejudice to a motion for the same relief in Supreme Court (see 22 NYCRR 1000.4 [a] [1] [ii]; Matter of Stewart v Soda, 239 AD2d 966), and

It is further ORDERED that the cross motion is granted and the appeal is dismissed without further order unless the appeal is perfected on or before December 26, 2012.

Entered: October 24, 2012

Frances E. Cafarell, Clerk