PRESENT: WHALEN, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.

DOCKET NO. CA 16-02092

THOMAS FRECK, PETITIONER-APPELLANT-RESPONDENT, V TOWN OF PORTER, TOWN OF PORTER ZONING BOARD OF APPEALS, TOWN OF PORTER PLANNING BOARD, ET AL., RESPONDENTS-RESPONDENTS, THOMAS FLECKENSTEIN, INDIVIDUALLY AND AS TRUSTEE OF THE JUDITH A. FLECKSTEIN LIVING TRUST, JUDITH A. FLECKENSTEIN, INDIVIDUALLY AND AS TRUSTEE OF THE JUDITH A. FLECKENSTEIN LIVING TRUST, AND NIAGARA AQUACULTURE, INC., RESPONDENTS-RESPONDENTS-APPELLANTS.

Petitioner Thomas Freck having moved, pursuant to CPLR 5511, to dismiss the cross appeal taken herein from an order and judgment of the Supreme Court entered in the Office of the Clerk of the County of Erie on August 26, 2016, and having moved for an extension of time to perfect his appeal taken from the same order and judgment, and respondents Thomas Fleckenstein, individually and as Trustee of the Judith A. Fleckenstein Living Trust, Judith A. Fleckenstein, individually and as Trustee of the Judith A. Fleckenstein Living Trust, and Niagara Aquaculture, Inc. having cross-moved for an extension of time to perfect their cross appeal,

Now, upon reading and filing the affirmations of Jonathan R. Tantillo, Esq., dated November 18, 2016, and December 1, 2016, the affirmation of Charles W. Malcomb, Esq., dated November 22, 2016, 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 petitioner's motion insofar as it seeks to dismiss the cross appeal is denied without prejudice to the parties raising the arguments in support of and in opposition to this motion in the briefs and at oral argument, and

It is further ORDERED that motion and cross motion insofar as they seek extensions of time to perfect the appeal and cross appeal are dismissed as premature (see 22 NYCRR 1000.13 [f]).

Entered: December 5, 2016

Frances E. Cafarell, Clerk