
    Wagner Trading Company, Inc., Respondent-Appellant, v Tony Walker Retail Management Company, Inc., et al., Appellants-Respondents.
    (Appeal No. 1.)
    [762 NYS2d 863]
   Appeal and cross appeal from an order of Supreme Court, Erie County (Fahey, J.), entered June 26, 2002, which, inter alia, dismissed the third cause of action for fraud.

It is hereby ordered that said appeal and that part of the cross appeal concerning attorneys’ fees be and the same hereby

are unanimously dismissed (see Hughes v Nussbaumer, Clarke & Velzy, 140 AD2d 988 [1988]; Chase Manhattan Bank v Roberts & Roberts, 63 AD2d 566, 567 [1978]; see also CPLR 5501 [a] [1]) and the order insofar as it dismissed the third cause of action is affirmed without costs.

Same memorandum as in Wagner Trading Co. v Walker Retail Mgt. Co. (307 AD2d 701 [2003]). Present — Pine, J.P., Hurl-butt, Gorski, Lawton and Hayes, JJ.  