Velez v. Division Nine Holding Corp.

52 A.D.3d 292, 861 N.Y.S.2d 614

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 10, 2008
• Status: Published

Opinion

Order, Supreme Court, New York County (Paul G. Feinman, J.), entered January 22, 2008, which denied third third-party defendant’s motion for summary judgment dismissing that third-party complaint, unanimously affirmed, without costs.

The motion sought to avoid third-party liability by defeating plaintiffs claim against defendant/third third-party plaintiff. In order to obtain dismissal of the third third-party complaint by this means, third third-party defendant should have moved for summary judgment on both the third third-party complaint and the main complaint by putting all interested parties on notice that it was seeking dismissal of both. In the absence of a motion properly seeking dismissal of the main action by third third-party defendant or any other party, the court properly declined to search the record for that purpose (see Dunham v Hilco Constr. Co., 89 NY2d 425 [1996]; Bridgehampton Natl. Bank v Schaffner, 247 AD2d 351 [1998]). Concur—Tom, J.P, Mazzarelli, Gonzalez, Sweeny and DeGrasse, JJ. [See 18 Misc 3d 1122(A), 2008 NY Slip Op 50155(U).]