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

1343
CA 11-00542
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, GREEN, AND MARTOCHE, JJ.


JOSEPH BYRD, PLAINTIFF-RESPONDENT,

                      V                             MEMORANDUM AND ORDER

FREDERICK E. RONEKER, JR., DEFENDANT-APPELLANT,
ET AL., DEFENDANTS.
(APPEAL NO. 2.)


KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (NANCY A. LONG OF COUNSEL),
FOR DEFENDANT-APPELLANT.

BARRY J. DONOHUE, TONAWANDA, FOR PLAINTIFF-RESPONDENT.


      Appeal from an order of the Supreme Court, Erie County (Diane Y.
Devlin, J.), entered March 8, 2011 in a personal injury action. The
order settled the record on appeal from an order entered October 25,
2010.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting in part the motion of
defendant Frederick E. Roneker, Jr. to settle the record on appeal and
including plaintiff’s memorandum of law therein for the sole purpose
of determining whether certain of plaintiff’s contentions are
preserved for our review and as modified the order is affirmed without
costs.

     Same Memorandum as in Byrd v Roneker ([appeal No. 1] ___ AD3d ___
[Dec. 30, 2011]).




Entered:    December 30, 2011                     Frances E. Cafarell
                                                  Clerk of the Court
