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

42
CA 13-00809
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.


ACEA MOSEY, AS ADMINISTRATOR OF THE ESTATE OF
LAURA CUMMINGS, DECEASED, PLAINTIFF-APPELLANT,

                     V                             MEMORANDUM AND ORDER

TIMOTHY B. HOWARD, ERIE COUNTY SHERIFF,
DEFENDANT-RESPONDENT.
(APPEAL NO. 2.)


CONNORS & VILARDO, LLP, BUFFALO (JOHN T. LOSS OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

MICHAEL A. SIRAGUSA, COUNTY ATTORNEY, BUFFALO (JEREMY C. TOTH OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Diane Y.
Devlin, J.), entered July 10, 2012. The order granted the motion of
defendant to dismiss the complaint and dismissed the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying defendant’s motion in part
and reinstating the third cause of action and the fourth cause of
action to the extent that it is based on the third cause of action and
as modified the order is affirmed without costs.

     Same Memorandum as in Mosey v County of Erie ([appeal No. 1] ___
AD3d ___ [May 2, 2014]).




Entered:   May 2, 2014                           Frances E. Cafarell
                                                 Clerk of the Court
