Dow v. Niagara Square Associates

— Order unanimously affirmed without costs. Memorandum: We affirm for reasons stated in the decision at Supreme Court. We add only that the statement contained in the last paragraph of Supreme Court’s written decision constituted dictum and was not necessary to the court’s resolution of the issues raised. Moreover, in support of their motion for summary judgment on the third-party complaint for contractual and common-law indemnification, third-party plaintiffs established by the submission of evidentiary proof in admissible form that they were not negligent as a matter of law because they had neither actual nor constructive notice of the allegedly dangerous condition of the fire escape (see, Gordon v American Museum of Natural History, 67 NY2d 836 , 837). In opposition, third-party defendant failed to produce evidentiary proof in admissible form to demonstrate the existence of a material question of fact regarding the issue of notice. (Appeal from Order of Supreme Court, Erie County, Fallon, J. — Sum