Marcellus Volunteer Fire Department, Inc. v. Stock

Motion for reargument granted and upon reargument, order entered December 23, 1988 vacated, clerk directed to accept petitioner’s brief for filing; the appeal to be argued at the term of this court commencing August 28, 1989 and respondents are to be filed and served on or before August 8, 1989. Memorandum: In granting our order of July 10, 1987, which denied petitioner’s motion for an extension of time to perfect the appeal with leave to renew upon compliance with 22 NYCRR 1000.3 (b) (2), we assumed that the date appearing at the top of the order, August 28, 1986, was the date thereof, and we concluded that the proceeding had been abandoned. When petitioner did not renew the motion, we granted respondents’ motion to dismiss by order of December 23, 1988. Upon close inspection of the order of transfer, we find that it was not dated because the court did not endorse a date at the *1048bottom near its signature. The decision upon which the order was based was not rendered until October 6, 1986 and, thus, the date appearing at the top of the order could not have been the date thereof. Consequently, the proceeding had not been abandoned when we granted our order of July 10, 1987, and our order of December 23, 1988 dismissing the proceeding was based upon our misapprehension that it had been so abandoned. Present — Callahan, J. P., Doerr, Boomer, Green and Lawton, JJ.