LACKAWANNA GAIGE SON GROCERY INC DOING BUSINESS AS CORNING JUBILEE TJ MARKET INC DOING BUSINESS AS HORSEHEADS JUBILEE BB 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 APPELLANTS v. APPEAL NO

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Supreme Court, Appellate Division, Fourth Department, New York.

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-APPELLANTS, v. COMPENSATION RISK MANAGERS, LLC, DEFENDANT-APPELLANT -RESPONDENT. (APPEAL NO. 1.)

CA 10-01068

Decided: March 25, 2011

PRESENT:  SCUDDER, P.J., FAHEY, CARNI, GREEN, AND GORSKI, JJ. HITCHCOCK & CUMMINGS, LLP, NEW YORK CITY (CHRISTOPHER B. HITCHCOCK OF COUNSEL), AND CONNORS & VILARDO, LLP, BUFFALO, FOR DEFENDANT-APPELLANT-RESPONDENT. PHILLIPS LYTLE LLP, BUFFALO (KENNETH A. MANNING OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS-APPELLANTS.

ORDER

Appeal and cross appeal from an order of the Supreme Court, Erie County (John M. Curran, J.), entered August 4, 2009 in a breach of contract action.   The order, among other things, granted in part defendant's motion to dismiss plaintiffs' supplemental and amended complaint.

It is hereby ORDERED that said appeal is unanimously dismissed without costs as moot (see Baker v. 16 Sutton Place Apt. Corp., 2 AD3d 119, 120) and the cross appeal is dismissed without costs as abandoned (see Restey v. Higgins, 252 A.D.2d 954).

Patricia L. Morgan

Clerk of the Court