Coto v. United Artists Theatre Circuit, Inc.

274 A.D.2d 444, 711 N.Y.S.2d 902, 2000 N.Y. App. Div. LEXIS 7837

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 17, 2000
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the third-party defendant, Pepco Construction Corp., appeals from an order of the Supreme Court, Kings County (Jones, J.), dated September 11, 1998, which granted the motion of the defendant third-party plaintiff United Artists Theatre Circuit, Inc., for conditional summary judgment on the third-party causes of action for common-law and contractual indemnification, and for summary judgment on the third-party cause of action to recover damages for breach of contract to procure insurance.

Ordered that the order is reversed, on the law, with costs, and the motion is denied.

In support of its motion for conditional summary judgment on its third-party causes of action for common-law and contractual indemnification, and for summary judgment on its claim to recover damages for breach of contract to procure insurance, the defendant third-party plaintiff United Artists Theatre Circuit, Inc., failed to establish its prima facie entitlement to judgment as a matter of law (see, CPLR 3212; see generally, Alvarez v Prospect Hosp., 68 NY2d 320). Accordingly, its motion should have been denied, regardless of the sufficiency of the opposing papers of the third-party defendant, Pepeo Construction Corp. (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). Goldstein, J. P., McGinity, Luciano and Smith, JJ., concur.