Seudath v. Mott

266 A.D.2d 450, 698 N.Y.S.2d 885, 1999 N.Y. App. Div. LEXIS 12084

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 22, 1999
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the third-party defendant Arthur Mott appeals from an order of the Supreme Court, Queens County (LaTorella, J.), dated September 16, 1998, which denied his motion for summary judgment dismissing the complaint insofar as it is asserted against the defendant third-party plaintiff Russ Gusta.

Ordered that the order is affirmed, with costs.

Contrary to the plaintiffs’ contention, the appellant, a third-party defendant, is aggrieved by the order denying his motion for summary judgment dismissing their complaint insofar as asserted against the defendant third-party plaintiff Russ Gusta, and thus may appeal from the order (see, CPLR 5511; Ciraolo v Melville Ct. Assocs., 221 AD2d 582).

The Supreme Court properly concluded that there are issues of fact as to whether Gusta assumed a duty to the injured plaintiff and, if so, whether his negligence, if any, was a proximate cause of the injuries sustained (see, Nallan v Helmsley-Spear, Inc., 50 NY2d 507; Wolf v City of New York, 39 NY2d 568; Cohen v Heritage Motor Tours, 205 AD2d 105; Gordon v Muchnick, 180 AD2d 715). Altman, J. P., H. Miller, Schmidt and Smith, JJ., concur.