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

897
CA 11-01726
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


SHAWN PALMER, PLAINTIFF-RESPONDENT,

                      V                           MEMORANDUM AND ORDER

COUNTY OF ERIE, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, BUFFALO (ERIC S.
BERNHARDT OF COUNSEL), FOR DEFENDANT-APPELLANT.

MAXWELL MURPHY, LLC, BUFFALO (ALAN D. VOOS OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Tracey A.
Bannister, J.), entered May 9, 2011. The order denied that part of
plaintiff’s motion seeking leave to renew and granted that part of
plaintiff’s motion seeking partial summary judgment on liability
pursuant to Labor Law § 240 (1).

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, plaintiff’s motion
insofar as it seeks leave to renew is granted, that part of the
underlying motion seeking summary judgment dismissing the Labor Law §
240 (1) claim against defendant is denied, that claim is reinstated
and plaintiff’s motion insofar as it seeks partial summary judgment on
that claim is denied.

     Same Memorandum as in Palmer v County of Erie ([appeal No. 1] ___
AD3d ___ [Oct. 5, 2012]).




Entered:    October 5, 2012                     Frances E. Cafarell
                                                Clerk of the Court
