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

DOCKET NO. CA 13-00406

GEOFFREY BOND AND SALLY T. BOOTEY, PLAINTIFFS-RESPONDENTS, V THOMAS A. TURNER AND MICHELLE M. TURNER, DEFENDANTS-APPELLANTS, AND VILLAGE OF LAKEWOOD, DEFENDANT-RESPONDENT.

Plaintiffs-respondents having moved to dismiss a judgment of the Supreme Court entered in the Office of the Clerk of the County of Chautauqua on July 26, 2012, on the ground that the same issues were incorporated in the order of Supreme Court entered in the Office of the Clerk of the County of Chautauqua on October 24, 2011, and the appeal from Supreme Court's order entered October 24, 2011 has been dismissed, and

Defendants-appellants having cross-moved to vacate dismissal of their appeal taken herein from Supreme Court's order entered October 24, 2011, and having moved for other relief,

Now, upon reading and filing the affidavits of Paul V. Webb, Jr., Esq., sworn to March 1, 2013, March 5, 2013, and March 14, 2013, the affidavits of Michael J. Willett, Esq., sworn to March 8, 2013, and March 14, 2013, the notices of motion and cross motion with proof of service thereof, and the affidavit of Andrew W. Goodell, Esq., sworn to March 11, 2013, and due deliberation having been had thereon,

It is hereby ORDERED that the motion is denied, and

It is further ORDERED that the cross motion is granted, dismissal of the appeal from Supreme Court's order entered October 24, 2011, is vacated and the appeal from Supreme Court's order entered October 24, 2011, is withdrawn without prejudice.

Entered: April 12, 2013

Frances E. Cafarell, Clerk