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

DOCKET NO. CA 14-01843

EDWARD P. CASE, PLAINTIFF, V HAZELTON COURT HOMEOWNERS ASSOCIATION, INC., DEFENDANT-RESPONDENT, SAXE 5, LLC, DEFENDANT-APPELLANT, MARGARET GERBY AND KATE M. BECKER DOING BUSINESS AS GREENHOUSE CAFE, DEFENDANTS, ROGER B. SMITH, BETTY W. SMITH, BROWNCROFT LAWN & LANDSCAPE, LLC, DEFENDANTS-RESPONDENTS.

Respondent Hazelton Court Homeowners' Association, Inc. having moved to dismiss Saxe 5, LLC's appeal taken herein from an order of the Supreme Court entered in the Office of the Clerk of the County of Monroe on June 25, 2014, on the ground that the appeal is defective and untimely, or, in the alternative, on the ground that appellant Saxe 5, LLC failed to perfect timely the appeal,

Now, upon reading and filing the affidavits of Matthew C. Lenahan, Esq., sworn to October 3, 2014, and October 31, 2014, the notice of motion with proof of service thereof, affirmation of Jeffrey P. Reisner, Esq., dated October 27, 2014, and due deliberation having been had thereon,

It is hereby ORDERED that the motion is granted insofar as it seeks to dismiss the appeal for failure to perfect timely the appeal, and the appeal is dismissed without further order unless the appeal is perfected on or before February 9, 2015, and

It is further ORDERED that motion is otherwise denied, and

It is further ORDERED that Saxe 5, LLC's notice of appeal is deemed a valid notice of appeal from the order entered June 25, 2014 (see CPLR 5520 [c]; Spano v County of Onondaga, 170 AD2d 974).

Entered: December 9, 2014

Frances E. Cafarell, Clerk