Palumbo Block, Inc. v. Ellerbe Becket Architects & Engineers

Majority

p. 436

Palumbo Block, Inc., Plaintiff, v Ellerbe Becket Architects and Engineers, Defendant and Third-Party Plaintiff-Respondent, et al., Defendants. Dovin Construction Co., Inc., Third-Party Defendant-Appellant.

[703 NYS2d 401]

—In an action, inter alia, to recover damages for the breach of a construction contract, the third-party defendant appeals from so much of an order of the Supreme Court, Dutchess County (Hillery, J.), dated January 22, 1999, as denied its motion to dismiss the third-party complaint for failure to state a cause of action.

Ordered that the order is affirmed insofar as appealed from, with costs.

Assuming, as we must, that the allegations set forth in the third-party complaint are true (see, Rovello v Orofino Realty Co., 40 NY2d 633 ), the Supreme Court did not err in finding that the third-party complaint stated a cause of action (see, Garrett v Holiday Inns, 58 NY2d 253 , 262-263).

The remaining contentions of the third-party defendant are without merit. Ritter, J. P., Sullivan, S. Miller and Luciano, JJ., concur.

Cases cited

Rovello v. Orofino Realty Co. 40 NY2d 633 N.Y. 1976-10-26 p. 436
Garrett v. Holiday Inns, Inc. 58 NY2d 253 N.Y. 1983-02-23 at 262-263 p. 436