Opinion
CA 03-00488.
Decided April 30, 2004.
Appeal from an order of the Supreme Court, Monroe County (Thomas A. Stander, J.), entered January 3, 2003. The order, insofar as appealed from, granted plaintiffs summary judgment dismissing the affirmative defenses and counterclaim of intervenor-defendant.
SHAPIRO, ROSENBAUM, LIEBSCHUTZ NELSON, LLP, ROCHESTER (WARREN B. ROSENBAUM OF COUNSEL), FOR INTERVENOR-DEFENDANT-APPELLANT.
UNDERBERG KESSLER LLP, ROCHESTER (RONALD G. HULL OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
Before: PRESENT: PIGOTT, JR., P.J., WISNER, KEHOE, LAWTON, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order insofar as appealed from be and the same hereby is reversed on the law without costs, the fifth ordering paragraph is vacated, and the complaint against intervenor-defendant is dismissed.
Same Memorandum as in Kamens v. Utica Mut. Ins. Co. ([appeal No. 1] 6 A.D.3d 1237 [Apr. 30, 2004]).
All concur except Pigott, Jr., P.J., and Hayes, J., who dissent and vote to affirm in the same dissenting Memorandum as in Kamens v. Utica Mut. Ins. Co. ([appeal No. 1] 6 A.D.3d 1237 [Apr. 30, 2004]).