*1 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 237

CA 16-00779

PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, DEJOSEPH, AND SCUDDER, JJ. JERAD M. ZARNOCH, PLAINTIFF-APPELLANT,

V MEMORANDUM AND ORDER ROBERT W. LUCKINA, INDIVIDUALLY AND DOING

BUSINESS AS ROB LUCKINA CONSTRUCTION,

DEFENDANT-RESPONDENT.

(APPEAL NO. 1.) EDWARD C. COSGROVE, BUFFALO, FOR PLAINTIFF-APPELLANT.

ROSSI & ROSSI, ATTORNEYS AT LAW PLLC, NEW YORK MILLS (VINCENT J. ROSSI, JR., OF COUNSEL), FOR DEFENDANT-RESPONDENT. Appeal from an order of the Supreme Court, Oneida County (Norman I. Siegel, J.), entered July 23, 2015. The order, among other things, denied the cross motion of plaintiff to dismiss the affirmative defense of special employment.

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

Same memorandum as in Zarnoch v Luckina ([appeal No. 2] ___ AD3d ___ [Mar. 24, 2017]).

Entered: March 24, 2017 Frances E. Cafarell

Clerk of the Court