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Mananghaya v. Bronx-Lebanon Hospital

136 A.D.3d 598 Court N.Y. App. Div. Decision date 2016-02-25 English

Judges Concur — Friedman, J.P., Sweeny, Saxe and Gische, JJ.

Contents

Majority

p. 598
Malou Mananghaya et al., Plaintiffs, v Bronx-Lebanon Hospital et al., Defendants. Napoli Transportation, Inc., Doing Business as C&L Towing Services, Inc., Third-Party Plaintiff, v Aggreko, LLC, Third-Party Defendant/Second Third-Party Defendant-Appellant. Bronx-Lebanon Hospital Center, Second Third-Party Plaintiff-Respondent.
[25 NYS3d 600]-

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered January 9, 2014, which denied second third-party defendant’s (Aggreko) motion to dismiss the second third-party complaint, pursuant to CPLR 3211 (a) (1), (7) and (8), unanimously affirmed, without costs.

The motion court correctly determined that the documentary evidence tendered by Aggreko — rental agreement terms and conditions unsigned by third-party plaintiff (the hospital) — did not conclusively establish a defense to the second third-party complaint as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314 , 326 [2002]).

Nor does Aggreko and the hospital’s course of conduct manifest that the hospital accepted the rental agreement terms and conditions (see Brown Bros. Elec. Contrs. v Beam Constr. Corp., 41 NY2d 397 , 399-400 [1977]).

We have considered Aggreko’s remaining contentions and find them unavailing.

Concur — Friedman, J.P., Sweeny, Saxe and Gische, JJ.

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