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

DOCKET NO. CA 13-01437

JAMES FOOTS, PLAINTIFF-RESPONDENT-APPELLANT, V CONSOLIDATED BUILDING CONTRACTORS, INC., DEFENDANT-RESPONDENT, 60 GRIDER STREET LLC, DEFENDANT-APPELLANT-RESPONDENT, ET AL. DEFENDANT.

Plaintiff having moved to vacate the dismissal of his cross appeal taken herein from an order of the Supreme Court entered in the Office of the Clerk of the County of Erie on November 15, 2012, and

Defendant Consolidated Building Contractors, Inc. having cross-moved for denial of plaintiff's motion to vacate dismissal of the cross appeal or, in the alternative, for an extension of time to file and serve a respondent's brief in response to plaintiff's brief,

Now, upon reading and filing the affidavit of Harry G. Modeas, Jr., Esq., sworn to September 26, 2013, the affirmation of Arlow M. Linton, Esq., dated October 7, 2013, 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 plaintiff's motion insofar as it seeks to vacate dismissal of his cross appeal is granted, and plaintiff's cross appeal is deemed timely filed and served, and the Clerk is directed to accept the brief for filing, and

It is further ORDERED that defendant Consolidated Building Contractors, Inc.'s cross motion is granted insofar as it seeks an extension of time to file and serve a respondent's brief in response to plaintiff's cross appeal, on the condition that the respondent's brief is filed and served on or before November 29, 2013, and the cross motion is otherwise denied.

Entered: October 23, 2013

Frances E. Cafarell, Clerk