*1 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 258

CA 10-01069

PRESENT: SCUDDER, P.J., FAHEY, CARNI, GREEN, AND GORSKI, JJ. FS KIDS, LLC, DOING BUSINESS AS BUDWEY’S

FOOD MARKET, MASK FOODS, INC., VALU HOME

CENTERS, INC., KBLM FOODS, INC., DOING

BUSINESS AS BLASDELL JUBILEE, KDJB

FOODS, INC., DOING BUSINESS AS SAVE-A-LOT ORDER LACKAWANNA, GAIGE & SON GROCERY, INC.,

DOING BUSINESS AS CORNING JUBILEE, TJ’S

MARKET, INC., DOING BUSINESS AS HORSEHEADS

JUBILEE, BB&T SUPERMARKETS INC., DOING

BUSINESS AS ATTICA JUBILEE, BNR-LARSON, LLC,

DOING BUSINESS AS CORFU IGA, AND GIFT EXPRESS

OF NEW YORK, INC., DOING BUSINESS AS THE

MARKET IN THE SQUARE, ON THEIR OWN BEHALF

AND ON BEHALF OF ALL OTHERS SIMILARLY

SITUATED AS THEY, AS FORMER EMPLOYEE

MEMBERS/PARTICIPANTS IN THE WHOLESALE AND

RETAIL WORKERS’ COMPENSATION TRUST OF NEW

YORK, PLAINTIFFS-RESPONDENTS,

V COMPENSATION RISK MANAGERS, LLC, DEFENDANT-APPELLANT.

(APPEAL NO. 2.)

HITCHCOCK & CUMMINGS, LLP, NEW YORK CITY (CHRISTOPHER B. HITCHCOCK OF COUNSEL), AND CONNORS & VILARDO, LLP, BUFFALO, FOR

DEFENDANT-APPELLANT.

PHILLIPS LYTLE LLP, BUFFALO (KENNETH A. MANNING OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS. Appeal from an order of the Supreme Court, Erie County (John M.

Curran, J.), entered April 14, 2010 in a breach of contract action. The order, among other things, denied in part defendant’s motion to dismiss plaintiffs’ second amended complaint.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs for reasons stated in the decision at Supreme Court.

Entered: March 25, 2011 Patricia L. Morgan

Clerk of the Court