Fagan v. Dime Savings Bank

258 A.D.2d 357, 683 N.Y.S.2d 62

Opinion

—Order, Supreme Court, New York County (Alice Schlesinger, J.), entered on or about June 5,1998, which denied the motions of defendant Dime Savings Bank (Dime) and third-party defendant Anchor Maintenance Services, Inc. (Anchor) for summary judgment dismissing plaintiffs complaint, denied third-party plaintiff Dime’s motion for conditional summary judgment against third-party defendant Anchor, and granted the request of third-party plaintiff Dime for leave to serve an amended third-party complaint, unanimously affirmed, without costs.

Evidence submitted by plaintiff in opposition to the motions of Dime and Anchor for summary judgment, indicating that on the days immediately preceding plaintiffs fall snow removal measures had been taken outside the subject bank branch, raise triable issues of fact as to whether such measures were performed negligently. Therefore, summary judgment dismissing the complaint was properly denied. Also properly denied was third-party plaintiff Dime’s motion for conditional summary judgment against third-party defendant Anchor since there are triable issues of fact as to whether Dime exercised supervision and control over Anchor’s snow removal operations in front of the subject bank branch.

The court properly granted Dime Savings Bank’s request for leave to serve an amended third-party complaint since there was neither surprise nor prejudice to third-party defendant Anchor (see, CPLR 3025 [b]; see also, Fahey v County of Ontario, 44 NY2d 934). Concur — Nardelli, J. P., Rubin, Tom and Andrias, JJ.