| THOMAS B. AKERS V JOHN MICHAEL BARRETT |
| Motion No: CA 14-01755 |
| Slip Opinion No: 2014 NY Slip Op 93199(U) |
| Decided on December 11, 2014 |
| Appellate Division, Fourth Department, Motion Decision |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This motion is uncorrected and is not subject to publication in the Official Reports. |
PRESENT: SCUDDER, P. J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.
DOCKET NO. CA 14-01755
| THOMAS B. AKERS, PLAINTIFF-RESPONDENT, V JOHN
MICHAEL BARRETT, DEFENDANT-APPELLANT. |
Respondent 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 Erie on April 21, 2014, on the ground that appellant failed to perfect timely the appeal and on the ground that denial of a motion to resettle substantive portions of prior orders is not appealable,
Now, upon reading and filing the affidavits of David B. Smith, Esq., sworn to September 12, 2014, and September 24, 2014, the notice of motion with proof of service thereof, and the affidavit of Gregory T. Miller, Esq., sworn to September 25, 2014, and due deliberation having been had thereon,
It is hereby ORDERED that the motion insofar as it seeks to dismiss the appeal for failure to perfect timely the appeal is granted, and the appeal is dismissed without further order unless it is perfected on or before February 9, 2015, and
It is further ORDERED that the motion is otherwise denied without prejudice to respondent raising his other argument for dismissal in his brief.
Entered: December 11, 2014
Frances E. Cafarell, Clerk