Mananghaya v. Bronx-Lebanon Hospital , 25 N.Y.S.3d 600 ( 2016 )

Mananghaya v Bronx-Lebanon Hosp. (2016 NY Slip Op 01409)

Mananghaya v Bronx-Lebanon Hosp.

2016 NY Slip Op 01409

Decided on February 25, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 25, 2016
Friedman, J.P., Sweeny, Saxe, Gische, JJ.

326 20191/13 83819/13 83953/13

[*1]Malou Mananghaya, et al., Plaintiffs,

v

Bronx-Lebanon Hospital, et al., Defendants. Napoli Transportation, Inc., doing business as C & L Towing Services, Inc., Third-Party Plaintiff, Aggreko, LLC, Third-Party Defendant. The Bronx-Lebanon Hospital Center, Second Third-Party Plaintiff-Respondent, Aggreko, LLC, Second Third-Party Defendant-Appellant.

O'Connor Reed LLP, Port Chester (Amy L. Fenno of counsel), for appellant.

Ahmuty, Demers & McManus, New York (Glenn A. Kaminska of counsel), for respondent.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered January 9, 2014, which denied second third-party defendant's (Aggreko) motion to dismiss the second third-party complaint, pursuant to CPLR 3211(a)(1), (7), and (8), unanimously affirmed, without costs.

The motion court correctly determined that the documentary evidence tendered by Aggreko - rental agreement terms and conditions unsigned by third-party plaintiff (the hospital) — did not conclusively establish a defense to the second third-party complaint as a matter of law (see Goshen v Mutual Life Ins. Co. , 98 NY2d 314, 326 [2002]).

Nor does Aggreko and the hospital's course of conduct manifest that the hospital accepted the rental agreement terms and conditions (see Brown Bros. Elec. Contrs. v Beam [*2]Constr. Corp. , 41 NY2d 397, 399-400 [1977]).

We have considered Aggreko's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 25, 2016

CLERK