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

CA 17-00255

MARK SMUKALL AND DIANE SMUKALL, PLAINTIFFS-APPELLANTS, V DOLLAR TREE STORES, INC., DEFENDANT-APPELLANT, DENTO, INC., DENT ENTERPRISES, INC., STEVEN M. SAILING, DOING BUSINESS AS B. SAILING SITE & LANDSCAPE CONTRACTOR AND B. SAILING SITE & LANDSCAPE CONTRACTOR, INC., DEFENDANTS-RESPONDENTS.

Appellants having moved for an order substituting Jennifer G. Flannery, Erie County Public Administrator, as administrator of the estate of Steven M. Sailing, for respondent Steven M. Sailing, doing business as B. Sailing Site & Landscape Contractor, having moved for a revised schedule for respondents to file their briefs, and having moved to restore to the calendar for oral argument the appeal taken herein from an order of the Supreme Court, Erie County, entered August 30, 2016, and respondent B. Sailing Site & Landscape Contractor, Inc. having cross-moved to dismiss the appeal on the ground that appellants failed to make a timely motion to substitute,

Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon,

It is hereby ORDERED that appellants motion, insofar as it seeks substitution, is granted on the condition that appellants file proof of service of their brief and record upon Jennifer G. Flannery, Erie County Public Administrator, on or before February 9, 2021, and

It is further ORDERED that respondents' briefs shall be filed and served on or before March 16, 2021, and

It is further ORDERED that the appeal is added to the term of this Court commencing August 11, 2021, and

It is further ORDERED that the cross motion is denied.

Entered: February 2, 2021

Mark W. Bennett

Clerk of the Court