Cessay v. Neighborhood Partnership Housing Development Fund Co.

—Order, Supreme Court, Bronx County (Gerald Esposito, J.), entered October 9, 1998, which, inter alia, granted plaintiffs cross motion to dismiss the third-party complaint and granted plaintiffs motion for summary judgment on the issue of liability, and order, same court and Justice, entered April 1, 1999, which granted defendant and third-party plaintiffs motion for reargument and renewal and thereupon adhered to its prior determination, unanimously affirmed, without costs. The third-party action, commenced on May 13, 1998, was 160 properly dismissed as untimely, since the parties stipulated that all third-party actions would be commenced by January 13, 1998 (see, National Enters. Corp. v Dechert Price & Rhoads, 181 AD2d 443), and defendant and third-party plaintiff failed to proffer an adequate excuse for the delay. Also proper was the court’s grant of plaintiffs motion for summary judgment on the issue of defendant’s liability under Labor Law § 240 (1). It is undisputed that plaintiff, in the course of replacing a floor in premises leased by defendant, fell from the second story of the building and that there were no scaffolds or other safety guards in place at the time of the fall (see, Kaborycha v Kimmins Indus. Serv. Corp., 243 AD2d 687). Concur — Sullivan, J. P., Williams, Mazzarelli, Wallach and Lerner, JJ.