The opinion
Appeal from an order of the Supreme Court, Erie County (Eugene M. Fahey, J.), entered August 10, 2005. The order denied plaintiffs motion for partial summary judgment on the first cause of action and dismissal of the second and third affirmative defenses.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Present&emdash;Hurlbutt, J.P, Scudder, Kehoe, Gorski and Hayes, JJ.