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

1126
CA 15-00230
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND VALENTINO, JJ.


TOWN OF AMHERST, A MUNICIPAL CORPORATION, AND
SWEETHOME CENTRAL SCHOOL DISTRICT,
PLAINTIFFS-RESPONDENTS,

                      V                           MEMORANDUM AND ORDER

PEPPER TREE HEIGHTS HOUSING CO., INC., PEPPER
TREE HEIGHTS ASSOCIATES, L.P,
DEFENDANTS-APPELLANTS,
AND COUNTY OF ERIE, DEFENDANT-RESPONDENT.


NESPER, FERBER & DIGIACOMO, LLP, AMHERST (GABRIEL J. FERBER OF
COUNSEL), FOR DEFENDANTS-APPELLANTS.

BENNETT, DIFILIPPO & KURTZHALTS, LLP, HOLLAND (RONALD P. BENNETT OF
COUNSEL), FOR PLAINTIFF-RESPONDENT TOWN OF AMHERST, A MUNICIPAL
CORPORATION.

GROSS, SHUMAN, BRIZDLE & GILFILLAN, P.C., BUFFALO (JOHN K. ROTTARIS OF
COUNSEL), FOR PLAINTIFF-RESPONDENT SWEET HOME CENTRAL SCHOOL DISTRICT.

BENGART & DEMARCO, LLP, TONAWANDA (SEAN R. MCDERMOTT OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Timothy
J. Walker, A.J.), entered July 30, 2014. The order, insofar as
appealed from, denied in part the motion of defendants Pepper Tree
Heights Housing Co., Inc. and Pepper Tree Heights Associates, L.P.
seeking to dismiss plaintiffs’ amended complaint against them.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs, the motion is granted
in its entirety, and the amended complaint against defendants Pepper
Tree Heights Housing Co., Inc. and Pepper Tree Heights Associates,
L.P. is dismissed.

     Memorandum: Defendants-appellants (defendants) appeal from an
order that denied in part their motion to dismiss the amended
complaint against them. We reverse the order insofar as appealed from
based on the reasoning set forth in our decision in Town of Amherst v
Brewster Mews Hous. Co., Inc. (___ AD3d ___ [Nov. 20, 2015]).

Entered:    November 20, 2015                   Frances E. Cafarell
                                                Clerk of the Court
