Velez v. Division Nine Holding Corp.

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

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).]