dissenting:

I dissent for the reasons stated in my dissent in Grochowski v. Phoenix Constr., 318 F.3d 80, 89 (2d Cir. 2003) (Lynch, D.J., dissenting), and by the New York Court of Appeals in Cox v. NAP Constr. Co., 10 N.Y.3d 592, 861 N.Y.S.2d 238, 891 N.E.2d 271 (2008).

ORDER

Following disposition of this appeal on June 13, 2013, an active judge of the Court requested a poll on whether to rehear the case en banc. A poll having been conducted and there being no majority favoring en banc review, rehearing en banc is hereby DENIED.

GERARD E. LYNCH, Circuit Judge, dissents by opinion from the denial of rehearing en banc.