
    Shanker Nesathurai, M.D., Appellant, v University at Buffalo, State University of New York, et al., Defendants, and James Czyrny, Respondent.
    (Appeal No. 2.)
    [803 NYS2d 494]
   Appeal from an order of the Supreme Court, Niagara County (Sara S. Sperrazza, A.J.), entered August 27, 2004. The order denied plaintiffs motion to dismiss the counterclaim of defendant James Czyrny. '

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law and in the exercise of discretion without costs, the motion is granted, the counterclaim is dismissed, and that part of the cross motion seeking leave to serve an amended answer to include the proposed amended counterclaim, excepting therefrom subparagraphs (a) and (b) of paragraph 28, is granted upon condition that defendant James Czyrny shall serve an amended answer within 30 days of service of a copy of the order of this Court with notice of entry.

Same memorandum as in Nesathurai v University at Buffalo, State Univ. of N.Y. (23 AD3d 1070 [2005]). Present—Hurlbutt, J.P., Scudder, Gorski, Smith and Lawton, JJ.  