Matter of Wilber
2004 NY Slip Op 06891 [11 AD3d 1049]
Decided on October 1, 2004
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.


Decided on October 1, 2004
SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

PRESENT: PIGOTT, JR., P.J., GORSKI, MARTOCHE, AND HAYES, JJ.

1080 CA 04-00443

[*1]MATTER OF SUSAN WILBER AND TONY WILBER, APPELLANTS, FOR DISCOVERY IN AID OF BRINGING AN ACTION. (ACTION NO. 1.) ———————————————————————————

SUSAN WILBER AND ANTHONY WILBER, PLAINTIFFS-APPELLANTS, ORDER

v

QUALITY VACUUM FORMING MACHINE COMPANY, INC., DEFENDANT-RESPONDENT. (ACTION NO. 2.) ———————————————————————————



SUSAN WILBER AND ANTHONY WILBER, PLAINTIFFS-APPELLANTS,

v

PAK-TECH, INC., ET AL., DEFENDANTS, RECTICEL FOAM CORPORATION, FOAMEX, L.P., FOAMEX INTERNATIONAL, INC., AND DAVID ZAWIERUCHA, DEFENDANTS-RESPONDENTS. (ACTION NO. 3.)




Appeal from an order of the Supreme Court, Erie County (Barbara Howe, J.), entered January 9, 2004. The order dismissed defendant David Zawierucha from action No. 3, denied plaintiffs' motion to strike the answers of defendants Recticel Foam Corporation, Foamex, L.P., and Foamex International, Inc. granted plaintiffs' motion for leave to renew, upon renewal, adhered to its prior determination denying plaintiffs' motion to strike certain answers in action No. 3, and granted plaintiffs' application to amend the preanswer order.


ELLIS & KUSTELL, BUFFALO (CARL B. KUSTELL OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
LAW OFFICE OF WALTER R. PACER, JR., BUFFALO (JAMES D. SCHULTZ, JR., OF COUNSEL), FOR DEFENDANT-RESPONDENT QUALITY VACUUM FORMING MACHINE COMPANY, INC.
DAMON & MOREY LLP, BUFFALO (THOMAS J. DRURY OF COUNSEL), FOR DEFENDANTS-RESPONDENTS RECTICEL FOAM CORPORATION, FOAMEX, L.P., FOAMEX INTERNATIONAL, INC. AND DAVID ZAWIERUCHA. Now, upon reading and filing the stipulation withdrawing appeal signed by the attorneys for the parties on June 7, 2004, [*2]


It is hereby ORDERED that said appeal be and the same hereby is unanimously dismissed without costs upon stipulation.
Entered: October 1, 2004
JoAnn M. Wahl
Clerk of the Court