Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered July 10, 2012. The order granted the motion of defendant to dismiss the complaint and dismissed the complaint.
It is hereby ordered that the order so appealed from is unanimously modified on the law by denying defendant’s motion in part and reinstating the third cause of action and the fourth cause of action to the extent that it is based on the third cause of action and as modified the order is affirmed without costs.
Same memorandum as in Mosey v County of Erie (117 AD3d 1381 [2014]).
Present—Smith, J.P, Peradotto, Lindley, Sconiers and Valentino, JJ.