Pilger v. Bergner

In an action to recover damages for personal injuries, the third-party defendant Associated Foods, Inc., appeals from so much of an order of the Supreme Court, Queens County (Polizzi, J.), dated February 9, 2004, as denied its motion for summary judgment dismissing the third-party complaint and all cross claims insofar as asserted against it, and the third-party defendant Aires Colombianos, Inc., cross-appeals from the same order. Ordered that the cross appeal is dismissed as abandoned, without costs or disbursements, for failure to perfect the same in accordance with the rules of this Court (see 22 NYCRR 670.8 [c]; [e]); and it is further Ordered that the order is affirmed insofar as appealed from, without costs or disbursements. In response to the showing by the third-party defendant Associated Foods, Inc. (hereinafter Associated), that it did not own, occupy, or control that portion of the basement where the plaintiffs accident allegedly occurred, the owners, the defendants third-party plaintiffs, Walter Bergner, as co-executor of 657 the estates of David Bergner and Lee Bergner, showed the existence of factual issues requiring the trial thereof. Accordingly, Associated’s motion for summary judgment was properly denied (see Zappel v Port Auth. of N.Y. & N.J., 285 AD2d 389 [2001]; see generally Butler v Rafferty, 100 NY2d 265, 269-272 [2003]; cf. Gehler v City of New York, 261 AD2d 506 [1999]). Florio, J.P., Krausman, Fisher and Lifson, JJ., concur.