Colon v. City of New York — 15 A.D.3d 173

Majority

p. 173

(February 3, 2005)

Alvin Colon, Plaintiff, v City of New York et al., Defendants. Kiska Construction Corp., USA, Third-Party Plaintiff-Respondent, v Achilles Construction Co., Inc., et al., Third-Party Defendants-Appellants, et al., Third-Party Defendant. (And Other Actions.)

[788 NYS2d 606]

Order, Supreme Court, Bronx County (Barry Salman, J.), entered July 30, 2004, which denied the motion of Achilles Construction Co. and cross motion of John Civetta & Sons, Inc. for, inter alia, summary judgment dismissing, as against the movant, the third-party complaint of Kiska Construction Corp., USA, unanimously affirmed, without costs.

Supreme Court properly denied Achilles’s motion since the evidence it presented did not suffice to eliminate all factual issues as to whether it was responsible for the accumulation of water that allegedly caused plaintiffs accident (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 , 853 [1985]). Although Civetta’s cross motion was similarly deficient, we affirm its denial because it was untimely, having been made more than 120 days after the filing of plaintiffs note of issue, and without a showing of “good cause” for the delay (see Brill v City of New York, 2 NY3d 648 [2004]).

We have reviewed appellants’ remaining arguments and find them unavailing. Concur — Buckley, PJ., Tom, Marlow, Gonzalez and Catterson, JJ.

Cases cited

Winegrad v. New York University Medical Center 64 NY2d 851 N.Y. 1985-02-12 at 853 p. 173