Fleming v Custom Bldg. Sys., Inc. (2005 NY Slip Op 06651)

Fleming v Custom Bldg. Sys., Inc.

2005 NY Slip Op 06651 [21 AD3d 929]

September 12, 2005

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, November 16, 2005

Raymond Fleming, Plaintiff,
v
Custom Building Systems, Inc., Defendant and Third-Party Plaintiff-Respondent. JMR Homes, Inc., Third-Party Defendant-Appellant.

—[*1]In an action to recover damages for personal injuries, the third-party defendant appeals from so much of an order of the Supreme Court, Orange County (Horowitz, J.), dated June 8, 2004, as denied its motion for summary judgment dismissing the third-party complaint.

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

There are triable issues of fact which preclude summary judgment dismissing the third-party complaint for indemnification and contribution (see Murphy v WFP 245 Park Co., L.P., 8 AD3d 161, 162 [2004]; Bornschein v Shuman, 7 AD3d 476, 479 [2004]; cf. O'Donoghue v New York City School Constr. Auth., 1 AD3d 333, 336 [2003]). Thus, the third-party defendant's motion was properly denied. Prudenti, P.J., Florio, Crane and Lifson, JJ., concur.