*1 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 789

CA 12-00231

PRESENT: SCUDDER, P.J., SMITH, FAHEY, LINDLEY, AND MARTOCHE, JJ. KIRK RUTHERFORD, PLAINTIFF-RESPONDENT,

V ORDER SPENCER SPEEDWAY, INC., NATIONAL ASSOCIATION

FOR STOCK CAR AUTO RACING, INC., JOHN WHITE

AND JOHN MULLIE, DEFENDANTS-APPELLANTS. DAMON MOREY LLP, BUFFALO (MICHAEL E. APPELBAUM OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (MICHAEL P. STUERMER OF COUNSEL), FOR PLAINTIFF-RESPONDENT. Appeal from an order of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.), entered July 6, 2011 in a personal injury action. The order denied the motion of defendants for summary judgment dismissing the complaint.

Now, upon the stipulation of discontinuance signed by the attorneys for the parties on June 7 and 8, 2012 and filed in the Niagara County Clerk’s Office on June 25, 2012,

It is hereby ORDERED that said appeal is unanimously dismissed without costs upon stipulation.

Entered: July 6, 2012 Frances E. Cafarell

Clerk of the Court