
    Custom Topsoil, Inc., et al., Appellants-Respondents, v City of Buffalo, Respondent, and Flexo Transparent, Inc., et al., Respondents-Appellants.
    (Appeal No. 2.)
    [784 NYS2d 421]
   Appeal and cross appeal from an order of the Supreme Court, Erie County (Donna M. Siwek, J.), entered October 9, 2003. The order denied plaintiffs’ motion pursuant to CPLR 5015 (a) and denied the cross motion of defendants Flexo Transparent, Inc., Diane M. McCarthy and Patrick J. McCarthy to resettle the order entered July 2, 2003.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by granting the cross motion and vacating the third ordering paragraph and as modified the order is affirmed without costs.

Same memorandum as in Custom Topsoil v City of Buffalo (12 AD3d 1162 [2004]). Present—Pigott, Jr., PJ., Green, Kehoe, Gorski and Hayes, JJ.  