—[*1] Law Offices of Michael Pilarz, Buffalo (Michael Pilarz of counsel), for defendant-appellant.

Claude A. Joerg, County Attorney, Lockport, for plaintiff-respondent.

Appeal from an order of the Supreme Court, Niagara County (Ralph A. Boniello, III, J.), entered September 21, 2007. The order denied defendant's motion for, inter alia, summary judgment dismissing the amended complaint.

It is hereby ordered that the order so appealed from is unanimously modified on the law by granting the motion in part and dismissing the amended complaint and as modified the order is affirmed without costs.

Memorandum: Defendant appeals from an order denying his motion for, inter alia, summary judgment dismissing the amended complaint as barred by General Municipal Law § 50-b (1). In its responding brief on appeal, plaintiff agrees with defendant that he is entitled to that relief in the event that he was acting in the discharge of his duties and within the scope of his employment. We conclude that the record establishes as a matter of law that defendant was so acting, and we therefore modify the order accordingly. Present—Scudder, P.J., Hurlbutt, Smith, Fahey and Gorski, JJ.