PRESENT: HURLBUTT, J.P., CENTRA, PERADOTTO, GREEN AND GORSKI, JJ.

DOCKET NO. CA 08-01913

IN THE MATTER OF LOCKPORT SMART GROWTH, INC., DOROTHY STOCKTON, THOMAS WALKER, JOSEPH P. STUART, JR., JAMES EMMERT, JOAN A. GRIGG, AND JOANNE WOODSIDE, PETITIONERS-APPELLANTS, V TOWN OF LOCKPORT, TOWN OF LOCKPORT PLANNING BOARD, RICHARD FORSEY, ROBERT BALCERZAK, MORRIS WINGARD, DAVID KINYON, WALTERN THORMAN, RODNEY CONRAD, WILLIAM FEW, AND ROBERT LANGDON, IN THE CAPACITIES AS MEMBERS OF THE TOWN OF LOCKPORT PLANNING BOARD, WAL-MART STORES, INC., WAL-MART REAL ESTATE BUSINESS TRUST, AND LOCKPORT L.L.C., RESPONDENTS-RESPONDENTS. (PROCEEDING NO. 1.) IN THE MATTER OF LOCKPORT SMART GROWTH, INC., JOAN A. GRIGG, AND JAMES EMMERT, PETITIONERS-APPELLANTS, V TOWN OF LOCKPORT ZONING BOARD OF APPEALS, EUGENE NENNIS, IN HIS OFFICIAL CAPACITY AS THE TOWN OF LOCKPORT BUILDING INSPECTOR, WAL-MART STORES, INC., LOCKPORT L.L.C., AND WAL-MART REAL ESTATE BUSINESS TRUST, RESPONDENTS-RESPONDENTS. (PROCEEDING NO. 2.)

Respondents Wal-Mart Stores, Inc. and Wal-Mart Real Estate Business Trust having moved to amend the record on the appeal taken from an order and judgment of the Supreme Court entered in the Office of the Clerk of the County of Niagara on May 16, 2008,

Now, upon reading and filing the affirmation of John G. Horn dated February 12, 2009, the notice of motion with proof of service thereof, the opposing affirmation of Jill L. Younkers dated February 20, 2009, the reply affirmation of John G. Horn dated February 27, 2009, and due deliberation having been had thereon,

DOCKET NO. CA 08-01913 PAGE 2

MARCH 3, 2009

It is hereby ORDERED that the motion be, and the same hereby is, denied.

Entered: March 3, 2009

JoAnn M. Wahl, Clerk