Schmitz v Caldwell & Cook, Inc.
2009 NY Slip Op 09734 [68 AD3d 1625]
December 30, 2009
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, February 10, 2010


Donna Lee Schmitz, as Executor of Robert J. Schmitz, Deceased, Respondent, v Caldwell & Cook, Inc., Respondent, and Beam Mack Sales & Service, Inc., Doing Business as Conway GMC Volvo Truck Division, Appellant, et al., Defendant. Caldwell & Cook, Inc., et al., Third-Party Plaintiffs,
v
Matthews and Fields of Henrietta, Inc., Third-Party Defendant-Respondent.

—[*1] Donald A.W. Smith, P.C., Pittsford, (Donald A.W. Smith of counsel) for defendant-appellant. E. Michael Cook, P.C., Rochester, (E. Michael Cook of counsel) for plaintiff-respondent. Chelus, Herdzik, Speyer & Monte, P.C., Buffalo (Thomas P. Kawalec of counsel), for defendant-respondent. Davidson & O'Mara, PC, Elmira (Ransom P. Reynolds, Jr., of counsel), for third-party defendant-respondent. Kenney Shelton Liptak Nowak LLP (Melissa A. Foti of counsel), for defendant.

Appeal from an order and judgment (one paper) of the Supreme Court, Monroe County (Evelyn Frazee, J.), entered July 20, 2008 in a wrongful death action. The order and judgment, insofar as appealed from, denied the motion of defendant Beam Mack Sales & Service, Inc., doing business as Conway GMC Volvo Truck Division, for summary judgment dismissing the amended complaint and cross claims against it.

Now, upon the stipulation of discontinuance signed by the attorneys for the parties on [*2]July 10, September 28, October 10, November 9 and November 24, 2009 and filed in the Monroe County Clerk's Office on November 30, 2009,

It is hereby ordered that said appeal is unanimously dismissed without costs upon stipulation. Present—Martoche, J.P., Smith, Peradotto, Carni and Green, JJ.