Legrand v. D.U. Second Realty Co.

—Order, Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered on or about October 25, 1999, which denied the third-party defendant’s motion for summary judgment dismissing the third-party complaint and all cross claims, unanimously affirmed, without costs. Because the conditional order striking the third-party defendant’s answer became self-executing upon failure to comply with its terms (see, Dimitratos v City of New York, 180 AD2d 414; Matter of Simmons v Board of Educ., 169 AD2d 727), the third-party defendant had no pleading before the court. Accordingly, its motion for summary judgment was untimely and properly denied (see, Alro Bldrs. & Contrs. v Chicken Koop, 78 AD2d 512; CPLR 3212 [a]). In any event, summary judgment in favor of the third-party defendant was unavailable on the merits since there exist material issues of fact as to whether it created the alleged hazardous condition or had notice thereof. Concur — Rosenberger, J. P., Nardelli, Ellerin, Lerner and Andrias, JJ.