Appeal from an order of the Supreme Court, Erie County (Joseph G. Makowski, J.), entered December 10, 2003 in a declaratory judgment action. The order denied plaintiffs motion for summary judgment and granted defendant’s cross motion for summary judgment.

It is hereby ordered that said appeal be and the same hereby is unanimously dismissed without costs (see Hughes v Nussbaumer, Clarke & Velzy, 140 AD2d 988 [1988]; Chase Manhattan Bank v Roberts & Roberts, 63 AD2d 566, 567 [1978]; see also CPLR 5501 [a] [1]). Present—Pigott, Jr., P.J., Green, Pine, Gorski and Lawton, JJ.