Coto v. United Artists Theatre Circuit, Inc. — 274 A.D.2d 444

Majority

p. 444

Jose I. Coto, Plaintiff, v United Artists Theatre Circuit, Inc., Defendant and Third-Party Plaintiff-Respondent, et al., Defendant. Pepco Construction Corp., Third-Party Defendant-Appellant.

[711 NYS2d 902]

—In an action to recover damages for personal injuries, the third-party defendant, Pepco Construction Corp., appeals from an order of the Supreme Court, Kings County (Jones, J.), dated September 11, 1998, which granted the motion of the defendant third-party plaintiff United Artists Theatre Circuit, Inc., for conditional summary judgment on the third-party causes of action for common-law and contractual indemnification, and for summary judgment on the third-party cause of action to recover damages for breach of contract to procure insurance.

Ordered that the order is reversed, on the law, with costs, and the motion is denied.

In support of its motion for conditional summary judgment on its third-party causes of action for common-law and contractual indemnification, and for summary judgment on its claim to recover damages for breach of contract to procure insurance, the defendant third-party plaintiff United Artists Theatre Circuit, Inc., failed to establish its prima facie entitlement to judgment as a matter of law (see, CPLR 3212; see generally,

p. 445

Alvarez v Prospect Hosp., 68 NY2d 320 ). Accordingly, its motion should have been denied, regardless of the sufficiency of the opposing papers of the third-party defendant, Pepeo Construction Corp. (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 ). Goldstein, J. P., McGinity, Luciano and Smith, JJ., concur.

Cases cited

Alvarez v. Prospect Hospital 68 NY2d 320 N.Y. 1986-11-11 p. 445
Winegrad v. New York University Medical Center 64 NY2d 851 N.Y. 1985-02-12 p. 445