*1 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 1315

CA 15-00178

PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND WHALEN, JJ. COMPTROLLER OF STATE OF NEW YORK, AS TRUSTEE

FOR THE NEW YORK STATE COMMON RETIREMENT FUND,

PLAINTIFF-APPELLANT,

V MEMORANDUM AND ORDER LEVEL ACRES LLC, DEFENDANT-RESPONDENT, ET AL., DEFENDANTS.

(APPEAL NO. 2.)

MCNAMEE, LOCHNER, TITUS & WILLIAMS, P.C., ALBANY (FRANCIS J. SMITH OF COUNSEL), FOR PLAINTIFF-APPELLANT.

PEKAREK LAW GROUP, P.C., WELLSVILLE (EDWARD PEKAREK OF COUNSEL), FOR DEFENDANT-RESPONDENT.

Appeal from an order of the Supreme Court, Allegany County (Thomas P. Brown, A.J.), entered November 6, 2014. The order denied the motion of plaintiff for summary judgment.

It is hereby ORDERED that said appeal is unanimously dismissed without costs.

Same memorandum as in Comptroller of State of New York v Level Acres LLC ([appeal No. 1] ___ AD3d ___ [Dec. 31, 2015]).

Entered: December 31, 2015 Frances E. Cafarell

Clerk of the Court