
    Kelly Nephew, Sr., et al., Plaintiffs, v Klewin Building Company, Inc., et al., Defendants. McPhee Electric Ltd., LLC, Third-Party Plaintiff-Appellant, v Ferguson Electric Construction Co., Inc., Third-Party Defendant-Respondent.
    (Appeal No. 2.)
    [801 NYS2d 203]
   Appeal from an order of the Supreme Court, Erie County (Eugene M. Fahey, J.), entered January 4, 2005. The order, insofar as appealed from, denied the cross motion of defendant-third-party plaintiff for summary judgment on the third-party complaint.

It is hereby ordered that the order insofar as appealed from be and the same hereby is unanimously reversed on the law without costs and the cross motion of defendant-third-party plaintiff is granted.

Same memorandum as in Nephew v Klewin Bldg. Co. (21 AD3d 1419 [2005]). Present—Green, J.P., Hurlbutt, Scudder, Gorski and Lawton, JJ.  