Appeal by plaintiff from a judgment of the Civil Court, Kings County (E. Nadelson, J.), entered July 19, 2004, in favor of defendant Hartford Steam Boiler dismissing the action.

Judgment unanimously reversed without costs, plaintiff's cause of action against defendant Hartford Steam Boiler reinstated and matter remanded to the Civil Court for all further proceedings as to said defendant.

Plaintiff commenced the instant action against defendant Hartford Steam Boiler (HSB) and another to recover damages for breach of contract. Although plaintiff admits he never entered into a contract with HSB, he essentially claims he was a third-party beneficiary of a contract between HSB and his insurer and that HSB breached the contract despite his repeated requests for performance. At trial, but prior to the receipt of sworn testimony, the court dismissed plaintiff's action against HSB and this appeal ensued.

Dismissal of plaintiff's cause of action against HSB was error inasmuch as the record was bereft of evidence in admissible form establishing, as a matter of law, that HSB was entitled to [*2]entry of a judgment dismissing plaintiff's action. Indeed, based upon the papers submitted with respect to a prior motion for summary judgment by HSB, the record appears to indicate the existence of issues of fact regarding plaintiff's status as a third-party beneficiary (see Cahill v Lazarski, 226 AD2d 572 [1996]; Nepco Forged Prods. v Consolidated Edison Co. of N. Y., 99 AD2d 508 [1984]) and, if plaintiff is a third-party beneficiary, whether plaintiff contacted HSB to request performance under the contract. Accordingly, plaintiff's cause of action against HSB must be reinstated and the matter remanded to the Civil Court.
Decision Date: July 28, 2005