SUPREME COURT: COUNTY OF CHAUTAUQUA

____________________________________

TRACY D. TECULVER

Plaintiff,

vs H-05577

BARAN DEVELOPMENT CO., INC.,

and WILLOWTREE POINT

DEVELOPMENT CO., INC.

Defendants.

____________________________________

BARAN DEVELOPMENT CO., INC.,

and WILLOWTREE POINT

DEVELOPMENT CO., INC.

Third-Party Plaintiffs,

vs

LANCE M. KINAL and

BRYAN EMORY Individually and

d/b/a EMORY & KINAL BUILDING

CONTRACTORS,

Third-Party Defendants.

____________________________________

FESSENDEN, LAUMER & DeANGELO

(J. Kevin Laumer, Esq. of

Counsel) for Plaintiff

QUACKENBUSH, CESSARIO & HAMLIN

(John J. Quackenbush, Jr., Esq.

of Counsel) for Defendant

QUINN, McGARRY & CAFFERY, P.C.

(David C. Quinn, Esq. of

Counsel) for Defendant

LUSTIG & BROWN

(James J. Duggan, Esq. of

Counsel) for Fourth Party

Defendant

DECISION and ORDER

GERACE, J.

Plaintiff's motion for partial summary judgment is

granted. The facts recited in the September 11, 1995

Decision and Order of this Court will not be repeated here.

In that decision, the Court ordered the deposition of

Merla Cole pursuant to CPLR 3212(f) to resolve the apparent

conflict in the affidavits she signed for both sides on

this case.

Ms. Cole confirmed she never heard plaintiff state he

was planning to fall off the roof or that he was trying to

figure out a way to fall off without getting hurt or that

he intentionally fell off the roof.

Her testimony indicated there was hardly any

inconsistency or incompatibility between her two

affidavits, and, that there would be no justification for

this Court to deny the motion for partial summary judgment.

THIS IS THE DECISION AND ORDER OF THIS COURT.

Dated: November , 1995

Mayville, New York

____________________________

JOSEPH GERACE

Supreme Court Justice

To all Counsel:

Please take notice that a DECISION and ORDER of

which the within is a copy, is duly granted in the above

entitled action on the day of , 1995, and

duly entered in the office of the Clerk of the County of

Chautauqua on the same date.