Mika v. Elthorp

*1141Appeal from an order of the Supreme Court, Herkimer County (Michael E. Daley, J.), entered January 27, 2004 in a personal injury action. The order, among other things, denied the motion of defendant Stanley L. Barber for summary judgment dismissing the complaint against him.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by granting the motion and dismissing the complaint against defendant Stanley L. Barber and as modified the order is affirmed without costs.

Memorandum: According to the sole eyewitness account in this personal…