Majority
Order, Supreme Court, Bronx County (Jerry Crispino, J.), entered April 11, 2003, which, insofar as appealed from as limited by the briefs, denied third-party defendant’s motion for summary judgment dismissing the third-party complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of third-party defendant dismissing the third-party complaint.
Third-party defendant is not bound by the trial court’s prior determination granting plaintiff summary judgment as to liability on his Labor Law § 240 (1) claim, since that determination was rendered before third-party defendant was joined in the action (see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481 , 486 [1979]). Thus, notwithstanding the prior grant of summary judgment in favor of plaintiff against defendant and third-party plaintiff, third-party defendant is entitled to summary judgment dismissing the third-party complaint because the record establishes that the complaint is without merit as a matter of law (see CPLR 1008; Prigent v Friedman, 264 AD2d 568 , 569 [1999]). Specifically, the Labor Law § 240 (1) cause of action is without merit because, at the time of his accident, plaintiff was performing routine maintenance work outside the ambit of the statute (see Jehle v Adams Hotel Assoc., 264 AD2d 354 [1999]); the Labor Law § 200 and common-law negligence causes of action are without merit because the record establishes that defendant and third-party plaintiff exercised no
Cases cited
- Gramatan Home Investors Corp. v. Lopez 46 NY2d 481 at 486 p. 588
- Jehle v. Adams Hotel Associates 264 AD2d 354 p. 588
- Rizzuto v. L.A. Wenger Contracting Co. 91 NY2d 343 at 352 p. 589
- Comes v. New York State Electric & Gas Corp. 82 NY2d 876 at 878 p. 589
- Brown v. New York Economic Development Corp. 234 AD2d 33 at 34 p. 589