Appeal from an order of Supreme Court, Oneida County (Ringrose, J.), entered November 6, 2002, which granted in part the cross motion of plaintiff for partial summary judgment on the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by denying in its entirety plaintiffs cross motion for partial summary judgment on the complaint and as modified the order is affirmed without costs.

Same memorandum as in Lakewood Constr. Co. v Brody ([appeal No. 1] 1 AD3d 1007 [2003]). Present—Pigott, Jr., PJ., Green, Scudder, Kehoe and Hayes, JJ.