
    Guy M. Ward, Doing Business as Johnston Equipment Company, Respondent, v Guardian Industries Corp., Appellant.
    (Appeal No. 1.)
    [793 NYS2d 805]
   Appeal from an order of the Supreme Court, Ontario County (Frederick G. Reed, A.J.), entered August 24, 2004. The order, insofar as appealed from, denied defendant’s motion to dismiss the complaint and granted that part of plaintiffs cross motion seeking summary judgment.

It is hereby ordered that said appeal be and the same hereby is unanimously dismissed without costs (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]). Present—Green, J.P., Hurlbutt, Kehoe, Smith and Hayes, JJ.  