Appeal from an order of the Supreme Court, Erie County (Joseph R. Glownia, J.), entered April 25, 2006. The order denied defendants’ motion to dismiss the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by granting the motion in part and dismissing the first cause of action and as modified the order is affirmed without costs.

Same memorandum as in Cohen v Allied Fire Protection Sys., Inc. (39 AD3d 1154 [2007]). Present—Gorski, J.P., Centra, Lunn, Peradotto and Pine, JJ.