           SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department
360
CA 10-00573
PRESENT: SCUDDER, P.J., CENTRA, SCONIERS, GORSKI, AND MARTOCHE, JJ.


HERKIMER COUNTY INDUSTRIAL DEVELOPMENT AGENCY,
PLAINTIFF-APPELLANT,

                     V                             MEMORANDUM AND ORDER

VILLAGE OF HERKIMER, DEFENDANT-RESPONDENT,
AND COUNTY OF HERKIMER, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


ROBERT J. MALONE, COUNTY ATTORNEY, HERKIMER (LORRAINE H. LEWANDROWSKI
OF COUNSEL), FOR DEFENDANT-APPELLANT.

KERNAN AND KERNAN, P.C., UTICA (MICHAEL H. STEPHENS OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

LONGSTREET & BERRY, LLP, SYRACUSE (MICHAEL LONGSTREET OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeals from a judgment (denominated order) of the Supreme Court,
Herkimer County (Michael E. Daley, J.), entered June 17, 2009. The
judgment denied the motion of defendant County of Herkimer for summary
judgment and granted the motion of defendant Village of Herkimer for
summary judgment.

     It is hereby ORDERED that the appeal by defendant County of
Herkimer from that part of the judgment denying its motion for summary
judgment is unanimously dismissed (see Loafin’ Tree Rest. v Pardi
[appeal No. 1], 162 AD2d 985) and the judgment is modified on the law
by denying the motion of defendant Village of Herkimer in its
entirety, reinstating the complaint against that defendant and
reinstating the cross claims of defendant County of Herkimer and as
modified the judgment is affirmed without costs.

     Same Memorandum as in Herkimer County Indus. Dev. Agency v
Village of Herkimer ([appeal No. 2] ___ AD3d ___ [May 6, 2011]).




Entered:   May 6, 2011                           Patricia L. Morgan
                                                 Clerk of the Court
