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DiGiaimo v. City of White Plains

224 A.D.2d 382 Court N.Y. App. Div. Decision date 1996-02-05 English

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p. 382
John DiGiaimo, Respondent, v City of White Plains, Defendant and Third-Party Plaintiff-Respondent. Playfield Industries, Inc., Third-Party Defendant-Appellant.
[637 NYS2d 943]

—In an action to recover damages for personal injuries, the third-party defendant Playfield Industries, Inc., appeals from an order of the Supreme Court, Westchester County (Colabella, J.), dated September 26, 1994, which denied its motion for summary judgment dismissing the third-party complaint.

Ordered that the order is affirmed, with costs.

We agree with the Supreme Court that triable issues of fact exist (see, CPLR 3212 [b]) as to whether the third-party defendant Playfield Industries, Inc., is a "mere continuation” of All Pro Athletic Surfaces such that it may be held liable for the negligent acts alleged in the plaintiff’s pleadings (see, Schumacher v Richards Schear Co., 59 NY2d 239 ). Mangano, P. J., Thompson, Friedmann and Florio, JJ., concur.

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