Erie County, No. E-94-029. This cause is pending before the court as an appeal from the Court of Appeals for Erie County. It appears from the records of this court that appellant has not filed a merit brief, due October 2,1995, in compliance with the Rules of Practice of the Supreme Court and therefore has failed to prosecute this cause with the requisite diligence. Upon consideration thereof,

IT IS ORDERED by the court that this cause be, and hereby is, dismissed sua sponte, effective October 3, 1995.

IT IS FURTHER ORDERED that the appellee recover from the appellant its costs herein expended; and that a mandate be sent to the Court of Appeals for Erie County to carry this judgment into execution; and that a copy of this entry be certified to the Clerk of the Court of Appeals for Erie County for entry.