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

1340
CA 13-01034
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, CARNI, AND VALENTINO, JJ.


GLORY FOLMSBEE AND MARK FOLMSBEE,
PLAINTIFFS-RESPONDENTS,

                      V                                           ORDER

THE GOODYEAR TIRE & RUBBER COMPANY, DOING
BUSINESS AS GOODYEAR AUTO SERVICE CENTERS,
DEFENDANT,
AND BENDERSON PROPERTIES, INC., FORMERLY KNOWN
AS BENDERSON DEVELOPMENT COMPANY, LLC,
DEFENDANT-APPELLANT.


KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (RODGER P. DOYLE, JR., OF
COUNSEL), FOR DEFENDANT-APPELLANT.

ANDREWS, BERNSTEIN, MARANTO & NICOTRA, PLLC, BUFFALO (ROBERT J.
MARANTO, JR., OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Patrick
H. NeMoyer, J.), entered August 14, 2012 in a personal injury action.
The order, inter alia, denied the motion of defendant Benderson
Properties, Inc., formerly known as Benderson Development Company,
LLC, for summary judgment dismissing the complaint against it and
granted plaintiffs partial summary judgment dismissing the affirmative
defense alleging assumption of risk.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs for reasons stated in the decision
at Supreme Court.




Entered:    December 27, 2013                    Frances E. Cafarell
                                                 Clerk of the Court
