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

DOCKET NO. CA 11-01616

LARRY PLAC, PLAINTIFF-APPELLANT, V VILLAGE OF ILION AND COUNTY OF HERKIMER, DEFENDANTS-RESPONDENTS.

Respondent County of Herkimer 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 Herkimer on April 27, 2011, on the ground that appellant did not serve a record and brief that complies with the order settling the record, the CPLR, and the Court's rules, or, in the alternative, having moved to strike appellant's record and brief or to extend the time to file and serve a respondent's brief, and having moved for other relief,

Now, upon reading and filing the affidavit of Stephen M. Groudine, Esq., sworn to October 1, 2012, the notice of motion with proof of service thereof, and the affidavit of Daniel A. Burgess, Esq., sworn to October 5, 2012, and due deliberation having been had thereon,

It is hereby ORDERED that the motion is granted insofar as it seeks to strike the record, and

It is further ORDERED that the appeal is hereby dismissed unless appellant files and serves on or before November 13, 2012, a new record, in substantial compliance with the CPLR and the Court's rules, containing a complete copy of all documents listed in the order settling the record and excluding those documents that are not listed in the order settling the record, and

It is further ORDERED that, in the event the appeal is not dismissed pursuant to this order, respondents Village of Ilion and County of Herkimer shall file and serve their briefs on or before December 18, 2012, and the Clerk is directed to accept the brief for filing, and

It is further ORDERED that reply briefs, if any, shall be filed and served on or before January 2, 2013.

Entered: October 24, 2012

Frances E. Cafarell, Clerk