
    Steven Sierk, Appellant, v Peter F. Frazon, Jr., et al., Respondents.
    (Appeal No. 3.)
    [820 NYS2d 829]
   Appeal from an order of the Supreme Court, Erie County (Joseph G. Makowski, J.), entered November 16, 2005 in a personal injury action. The order, inter alia, granted the motions of defendants Capital Paving & Development, Inc., Gordon Jaeckle and BAC Killiam, Inc., the cross motion of defendant M.P.J. Contracting, Inc. and the application of defendants Peter F. Frazon, Jr. and Sherri A. Beras for summary judgment dismissing the amended complaint against them.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by denying in part the motion of defendants Capital Paving & Development, Inc. and Gordon Jaeckle, the cross motion of defendant M.P.J. Contracting, Inc. and the application of defendants Peter F. Frazon, Jr. and Sherri A. Beras and reinstating the negligence cause of action against them and as modified the order is affirmed without costs.

Same memorandum as in Sierk v Frazon (32 AD3d 1153 [2006]). Present — Pigott, Jr., PJ., Hurlbutt, Scudder, Smith and Pine, JJ.  