
    Ronald J. Scalise et al., Doing Business as C.R. Properties, Appellants, v Herkimer, Fulton, Hamilton and Otsego County Board of Cooperative Educational Services, Also Known as “BOCES,” et al., Respondents.
    (Appeal No. 2.)
    [790 NYS2d 921]
   — Appeal from an order and judgment (one paper) of the Supreme Court, Herkimer County (Michael E. Daley, J.), entered November 17, 2003. The order and judgment denied plaintiffs’ motion to strike defendants’ affirmative defenses and granted the cross motion of defendants for summary judgment dismissing the complaint.

It is hereby ordered that the order and judgment so appealed from be and the same hereby is unanimously reversed on the law without costs, the cross motion is denied, the complaint is reinstated, the motion is granted in part and the fourth affirmative defense is dismissed.

Same memorandum as in Scalise v Herkimer, Fulton, Hamilton & Otsego County BOCES (16 AD3d 1059 [2005]). Present— Scudder, J.P., Kehoe, Gorski, Martoche and Smith, JJ.  