Legrand v. D.U. Second Realty Co.

Appellate Division of the Supreme Court of New York

Legrand v. D.U. Second Realty Co.

277 A.D.2d 153, 716 N.Y.S.2d 304, 2000 N.Y. App. Div. LEXIS 12417

Appellate Division of the Supreme Court of the State of New York·Decided November 28, 2000·Published

Opinion

—Order, Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered on or about October 25, 1999, which denied the third-party defendant’s motion for summary judgment dismissing the third-party complaint and all cross claims, unanimously affirmed, without costs.

Because the conditional order striking the third-party defendant’s answer became self-executing upon failure to comply with its terms (see, Dimitratos v City of New York, 180 AD2d 414; Matter of Simmons v Board of Educ., 169 AD2d 727), the third-party defendant had no pleading before the court. Accordingly, its motion for summary judgment was untimely and properly denied (see, Alro Bldrs. & Contrs. v Chicken Koop, 78 AD2d 512; CPLR 3212 [a]). In any event, summary judgment in favor of the third-party defendant was unavailable on the merits since there exist material issues of fact as to whether it created the alleged hazardous condition or had notice thereof. Concur — Rosenberger, J. P., Nardelli, Ellerin, Lerner and Andrias, JJ.

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—Order, Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered on or about October 25, 1999, which denied the third-party defendant’s motion for summary judgment dismissing the third-party complaint and all cross claims, unanimously affirmed, without costs.

Because the conditional order striking the third-party defendant’s answer became self-executing upon failure to comply with its terms (see, Dimitratos v City of New York, 180 AD2d 414; Matter of Simmons v Board of Educ., 169 AD2d 727), the third-party defendant had no pleading before the court. Accordingly, its motion for summary judgment was untimely and properly denied (see, Alro Bldrs. & Contrs. v Chicken Koop, 78 AD2d 512; CPLR 3212 [a]). In any event, summary judgment in favor of the third-party defendant was unavailable on the merits since there exist material issues of fact as to whether it created the alleged hazardous condition or had notice thereof. Concur — Rosenberger, J. P., Nardelli, Ellerin, Lerner and Andrias, JJ.

Legrand v. D.U. Second Realty Co., 277 A.D.2d 153, 716 N.Y.S.2d 304, 2000 N.Y. App. Div. LEXIS 12417 (N.Y. Ct. App. 2000).

Pincite

277 A.D.2d 153 (Legrand v. D.U. Second Realty Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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