| Mananghaya v Bronx-Lebanon Hosp. |
| 2016 NY Slip Op 01409 [136 AD3d 598] |
| February 25, 2016 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| 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. |
O'Connor Reed LLP, Port Chester (Amy L. Fenno of counsel), for appellant.
Ahmuty, Demers & McManus, New York (Glenn A. Kaminska of counsel), for respondent.
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 [*2]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.