         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
257
CA 10-01068
PRESENT: SCUDDER, P.J., FAHEY, CARNI, GREEN, AND GORSKI, JJ.


FS KIDS, LLC, DOING BUSINESS AS BUDWEY’S
FOOD MARKET, MASK FOODS, INC., VALU HOME
CENTERS, INC., KBLM FOODS, INC., DOING
BUSINESS AS BLASDELL JUBILEE, KDJB
FOODS, INC., DOING BUSINESS AS SAVE-A-LOT                          ORDER
LACKAWANNA, GAIGE & SON GROCERY, INC.,
DOING BUSINESS AS CORNING JUBILEE, TJ’S
MARKET, INC., DOING BUSINESS AS HORSEHEADS
JUBILEE, BB&T SUPERMARKETS INC., DOING
BUSINESS AS ATTICA JUBILEE, BNR-LARSON, LLC,
DOING BUSINESS AS CORFU IGA, AND GIFT EXPRESS
OF NEW YORK, INC., DOING BUSINESS AS THE
MARKET IN THE SQUARE, ON THEIR OWN BEHALF
AND ON BEHALF OF ALL OTHERS SIMILARLY
SITUATED AS THEY, AS FORMER EMPLOYEE
MEMBERS/PARTICIPANTS IN THE WHOLESALE AND
RETAIL WORKERS’ COMPENSATION TRUST OF NEW
YORK, PLAINTIFFS-RESPONDENTS-APPELLANTS,

                    V

COMPENSATION RISK MANAGERS, LLC,
DEFENDANT-APPELLANT-RESPONDENT.
(APPEAL NO. 1.)


HITCHCOCK & CUMMINGS, LLP, NEW YORK CITY (CHRISTOPHER B. HITCHCOCK OF
COUNSEL), AND CONNORS & VILARDO, LLP, BUFFALO, FOR
DEFENDANT-APPELLANT-RESPONDENT.

PHILLIPS LYTLE LLP, BUFFALO (KENNETH A. MANNING OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS-APPELLANTS.


     Appeal and cross appeal from an order of the Supreme Court, Erie
County (John M. Curran, J.), entered August 4, 2009 in a breach of
contract action. The order, among other things, granted in part
defendant’s motion to dismiss plaintiffs’ supplemental and amended
complaint.

     It is hereby ORDERED that said appeal is unanimously dismissed
without costs as moot (see Baker v 16 Sutton Place Apt. Corp., 2 AD3d
119, 120) and the cross appeal is dismissed without costs as abandoned
                                 -2-                   257
                                                 CA 10-01068

(see Restey v Higgins, 252 AD2d 954).




Entered:   March 25, 2011               Patricia L. Morgan
                                        Clerk of the Court
