PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND WHALEN, JJ.

MOTION NO. 519-13
DOCKET NO. CA 12-01962

MARC A. NICOMETI, PLAINTIFF-RESPONDENT, V THE VINEYARDS OF FREDONIA, LLC, WINTER-PFOHL, INC., DEFENDANTS-APPELLANTS, ET AL., DEFENDANTS. SCOTT PFOHL, ET AL., THIRD-PARTY PLAINTIFFS, V WESTERN NEW YORK PLUMBING-ELLICOTT PLUMBING AND REMODELING CO., INC., THIRD-PARTY DEFENDANT-APPELLANT.

Plaintiff-respondent Marc A. Nicometi and third-party defendant-appellant Western New York Plumbing-Ellicott Plumbing and Remodeling Co., Inc. having moved and defendants-appellants Winter-Pfohl, Inc. and The Vineyards of Fredonia, LLC having cross-moved for reargument of or, in the alternative, leave to appeal to the Court of Appeals from the order of this Court entered June 14, 2013,

Now, upon reading and filing the affidavit of John E. Ballow, Esq., received July 10, 2013, the affidavit of Robert D. Leary, Esq., sworn to July 16, 2013, the affirmation of Laurence D. Behr, Esq., dated July 17, 2013, the affirmation of Louis B. Dingeldey, Jr., Esq., dated July18, 2013, the notices of motion and cross motion with proof of service thereof, and the affidavit of Jason A. Richman, Esq., sworn to July 19, 2013, and due deliberation having been had thereon,

It is hereby ORDERED that the motions and cross motions insofar as they seeks reargument are denied, and

It is further ORDERED that the motions and cross motions insofar as they seeks leave to appeal to the Court of Appeals are granted, this Court being of the opinion that a question of law has arisen that ought to be reviewed by the Court of Appeals, and the following question is

hereby certified: Was the order of this Court entered June 14, 2013, properly made?

Entered: September 27, 2013

Frances E. Cafarell, Clerk