Murray v. City of New York, 2006-03575.

• Decision Date: 14 August 2007
• Docket Number: 2006-03575.
• Citation: 841 N.Y.S.2d 341,2007 NY Slip Op 06421,43 A.D.3d 429
• Parties: GERALD J. MURRAY, Appellant, v. CITY OF NEW YORK, Defendant and Third-Party Plaintiff-Respondent-Appellant, and CODY CONSTRUCTION, Respondent, et al., Defendants. MASSAND ENGINEERING, L.S., P.C., Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

43 A.D.3d 429

841 N.Y.S.2d 341

2007 NY Slip Op 06421

GERALD J. MURRAY, Appellant, v. CITY OF NEW YORK, Defendant and Third-Party Plaintiff-Respondent-Appellant, and CODY CONSTRUCTION, Respondent, et al., Defendants.

MASSAND ENGINEERING, L.S., P.C., Third-Party Defendant-Respondent.

2006-03575.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided August 14, 2007.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his notice of appeal and brief, from so much of an order of the Supreme Court, Queens County (Elliot, J.), dated February 14, 2006, as, (1) upon the prior granting, in an order of the same court dated January 30, 2006, of those branches of the respective motions of the defendant Cody Construction and the defendant third-party plaintiff City of New York, which were for leave to renew, granted summary judgment dismissing the complaint insofar as asserted against them, and (2), granted that branch of the motion of the third-party defendant Massand Engineering, L.S., P.C., which was for summary judgment dismissing the third-party complaint, and the defendant third-party plaintiff the City of New York cross-appeals from so much of the same order as denied its renewed motion for summary judgment on its third-party cause of action against the third-party defendant Massand Engineering, L.S., P.C. for contractual indemnification.

Ordered that the plaintiff's appeal from so much of the order as granted that branch of the motion of the third-party defendant Massand Engineering, L.S., P.C. which was for summary judgment dismissing the third-party complaint is dismissed; and it is further,

Ordered that the order is affirmed insofar as reviewed, with one bill of costs payable by the plaintiff to the defendants-respondents and the third-party defendant-respondent appearing separately and filing separate briefs.

To the extent that the plaintiff contends that the branches of the respective motions of the defendant Cody Construction (hereinafter Cody) and the defendant third-party plaintiff City of New York which were for summary judgment dismissing the complaint insofar as asserted against each of the defendants should have been denied as untimely, and that the Supreme Court erred in granting those branches of the respective motions which were for leave to renew, we note that the Court's determination that the motions were timely, and the granting of those branches of the motions which were for leave to renew, were not made in the order appealed from, but rather in a prior order dated January 30, 2006, from which no appeal was taken. As such, those contentions are not properly before us on this appeal (see McKiernan v McKiernan, 277 AD2d 433 [2000]). In addition, the plaintiff's appeal from so much of the order as granted that branch of the motion of the third-party defendant ...