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

869
CA 12-00146
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.


GENESEE/WYOMING YMCA, PLAINTIFF-RESPONDENT,

                     V                               MEMORANDUM AND ORDER

BOVIS LEND LEASE LMB, INC., DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


HANCOCK ESTABROOK, LLP, SYRACUSE (JOHN G. POWERS OF COUNSEL), FOR
DEFENDANT-APPELLANT.

DAMON MOREY LLP, BUFFALO (BRIAN D. GWITT OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (John A.
Michalek, J.), entered January 3, 2012 in a breach of contract action.
The order denied the motion of defendant for summary judgment
dismissing the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting that part of the motion of
Bovis Lend Lease LMB, Inc. for summary judgment dismissing the second
cause of action in the complaint and as modified the order is affirmed
without costs.

     Same Memorandum as in Genesee/Wyoming YMCA v Bovis Lend Lease
LMB, Inc. ([appeal No. 1] ___ AD3d ___ [Sept. 28, 2012]).




Entered:   September 28, 2012                      Frances E. Cafarell
                                                   Clerk of the Court
