It is hereby ordered that said cross appeal be and the same hereby is unanimously dismissed ( see Town of Massena v. Niagara Mohawk Power Corp., 45 NY2d 482, 488; Matter of Brown v. Starkweather, 197 AD2d 840, 841, lv denied 82 NY2d 653; see also CPLR 5511) and the judgment is affirmed without costs.