TOWN OF AMHERST v. PEPPER TREE HEIGHTS HOUSING CO., IN ( 2015 )

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 1126 CA 15-00230 PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND VALENTINO, JJ. TOWN OF AMHERST, A MUNICIPAL CORPORATION, AND SWEETHOME CENTRAL SCHOOL DISTRICT, PLAINTIFFS-RESPONDENTS, V MEMORANDUM AND ORDER PEPPER TREE HEIGHTS HOUSING CO., INC., PEPPER TREE HEIGHTS ASSOCIATES, L.P, DEFENDANTS-APPELLANTS, AND COUNTY OF ERIE, DEFENDANT-RESPONDENT. NESPER, FERBER & DIGIACOMO, LLP, AMHERST (GABRIEL J. FERBER OF COUNSEL), FOR DEFENDANTS-APPELLANTS. BENNETT, DIFILIPPO & KURTZHALTS, LLP, HOLLAND (RONALD P. BENNETT OF COUNSEL), FOR PLAINTIFF-RESPONDENT TOWN OF AMHERST, A MUNICIPAL CORPORATION. GROSS, SHUMAN, BRIZDLE & GILFILLAN, P.C., BUFFALO (JOHN K. ROTTARIS OF COUNSEL), FOR PLAINTIFF-RESPONDENT SWEET HOME CENTRAL SCHOOL DISTRICT. BENGART & DEMARCO, LLP, TONAWANDA (SEAN R. MCDERMOTT OF COUNSEL), FOR DEFENDANT-RESPONDENT. Appeal from an order of the Supreme Court, Erie County (Timothy J. Walker, A.J.), entered July 30, 2014. The order, insofar as appealed from, denied in part the motion of defendants Pepper Tree Heights Housing Co., Inc. and Pepper Tree Heights Associates, L.P. seeking to dismiss plaintiffs’ amended complaint against them. It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the motion is granted in its entirety, and the amended complaint against defendants Pepper Tree Heights Housing Co., Inc. and Pepper Tree Heights Associates, L.P. is dismissed. Memorandum: Defendants-appellants (defendants) appeal from an order that denied in part their motion to dismiss the amended complaint against them. We reverse the order insofar as appealed from based on the reasoning set forth in our decision in Town of Amherst v Brewster Mews Hous. Co., Inc. (___ AD3d ___ [Nov. 20, 2015]). Entered: November 20, 2015 Frances E. Cafarell Clerk of the Court