176-60 Union Turnpike, Inc. v. Howard Beach Fitness Center, Inc.

271 A.D.2d 327, 706 N.Y.S.2d 875, 2000 N.Y. App. Div. LEXIS 4369

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 20, 2000
• Status: Published

Opinion

—Appeal from order, Supreme Court, New York County (Edward Lehner, J.), entered March 8, 1999, denying third-party defendant-appellant’s motions to vacate its default and for summary judgment dismissing the third-party complaint, unanimously dismissed, without costs.

Pursuant to CPLR 3217 (b), third-party plaintiff moved to discontinue the action and a full dismissal was ordered by the motion court. Accordingly, third-party defendant’s claims that the court improperly denied its motions are moot. Were we, however, to consider those claims, we would find them to be without merit. Third-party defendant in its motion to vacate the default presented no defense to the action, much less a meritorious one (see, Frenchy’s Bar & Grill v United Intl. Ins. Co., 251 AD2d 177). There was, in addition, no basis for summary judgment since triable issues of fact exist with respect to the issues of contribution and indemnification (see, 17 Vista Fee Assocs. v Teachers Ins. & Annuity Assn., 259 AD2d 75). Concur — Rosenberger, J. P., Williams, Rubin, Saxe and Buckley, JJ.