Gerard v. City of New York ( 1998 )

—Order, Supreme Court, New York County (Jane Solomon, J.), entered on or about August 6, 1997, which denied fourth-party defendant City Wide Asphalt Paving Co.’s motion for summary judgment dismissing the fourth-party complaint, unanimously affirmed, without costs.

The evidence presented by fourth-party plaintiff Felix Contracting Corp. sufficed to raise a material factual issue as to the exact location of plaintiffs accident and thus precluded the grant of fourth-party defendant-appellant’s motion for summary judgment dismissing the fourth-party complaint (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324). Upon appellant’s renewed application on oral argument, defendant and third-party plaintiffs brief is stricken. Concur — Lerner, P. J., Milonas, Ellerin, Rubin and Williams, JJ.