Berg v. City of New York , 346 N.Y.S.2d 465 ( 1973 )

In a negligence action to recover damages for personal injuries sustained by plaintiff Eva Berg, etc., the third-party defendant appeals -from an order of the Supreme Court, Kings County, dated February 15, 1973, which denied her motion to dismiss the third-party complaint. Order affirmed, without costs. In our view an appeal lies from an order denying a written motion on notice to dismiss a third-party complaint following the trial of an action in which the jury was unable to reach agreement as to the merits of the main action (see Richardson v. Wengate, 33 A D 2d 947). We affirm in the interests of justice in order to furnish the defendant city the opportunity to adduce proof that the defective condition of the sidewalk was the result of the cellar door, a special use or construction from which the third-party defendant derives a benefit (see Niekelsburg v. City of New York, 263 App. Div. 625). Rabin, P. J., Munder, Latham, Shapiro and Gulotta, JJ., concur.