R.B. Conway & Sons, Inc. v. New York City Department of Parks & Recreation

Appellate Division of the Supreme Court of New York

R.B. Conway & Sons, Inc. v. New York City Department of Parks & Recreation

136 A.D.3d 422, 23 N.Y.S.3d 881

Appellate Division of the Supreme Court of the State of New York·Decided February 4, 2016·No. 103 111994/10·Published

Opinion

— Judgment, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered January 7, 2015, to the extent it brings up for review an order, same court and Justice, entered June 23, 2014, which, among other things, upon a search of the record, sua sponte dismissed defendants-appellants’ (the Primer Construction defendants’) cross claim for contribution against defendant Victor A. Gordon, P.E., P.C., unanimously reversed, on the law, without costs, and the cross claim reinstated.

The motions before Supreme Court did not raise any issue with respect to the Primer Construction defendants’ cross claim *423 for contribution against Gordon, a nonmoving party. Accordingly, Supreme Court lacked the authority to search the record and dismiss that cross claim (see Castlepoint Ins. Co. v Moore, 109 AD3d 718, 719 [1st Dept 2013]; see also Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430 [1996]).

Concur — Saxe, J.P., Moskowitz, Richter and Feinman, JJ.

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— Judgment, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered January 7, 2015, to the extent it brings up for review an order, same court and Justice, entered June 23, 2014, which, among other things, upon a search of the record, sua sponte dismissed defendants-appellants’ (the Primer Construction defendants’) cross claim for contribution against defendant Victor A. Gordon, P.E., P.C., unanimously reversed, on the law, without costs, and the cross claim reinstated.

The motions before Supreme Court did not raise any issue with respect to the Primer Construction defendants’ cross claim *423 for contribution against Gordon, a nonmoving party. Accordingly, Supreme Court lacked the authority to search the record and dismiss that cross claim (see Castlepoint Ins. Co. v Moore, 109 AD3d 718, 719 [1st Dept 2013]; see also Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430 [1996]).

Concur — Saxe, J.P., Moskowitz, Richter and Feinman, JJ.

R.B. Conway & Sons, Inc. v. New York City Department of Parks & Recreation, 136 A.D.3d 422, 23 N.Y.S.3d 881 (N.Y. Ct. App. 2016).

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Opinion

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