R.B. Conway & Sons, Inc. v. New York City Department of Parks & Recreation , 23 N.Y.S.3d 881 ( 2016 )

R.B. Conway & Sons, Inc. v New York City Dept. of Parks & Recreation (2016 NY Slip Op 00747)

R.B. Conway & Sons, Inc. v New York City Dept. of Parks & Recreation

2016 NY Slip Op 00747

Decided on February 4, 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 4, 2016
Saxe, J.P., Moskowitz, Richter, Feinman, JJ.

103 111994/10

[*1]R.B. Conway & Sons, Inc., Plaintiff,

v

New York City Department of Parks and Recreation, et al., Defendants, Primer Construction Corp., et al., Defendants-Appellants, Victor A. Gordon, P.E., P.C., Defendant-Respondent.

Canfield Madden & Ruggiero LLP, Garden City (Liliya Abramchayeva of counsel), for appellants.

Judgment, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered January 7, 2015, to the extent it brings up for review an order, same court and Justice, entered June 23, 2014, which, among other things, upon a search of the record, sua sponte dismissed defendants-appellants' (the Primer Construction defendants') cross claim for contribution against defendant Victor A. Gordon, P.E., P.C., unanimously reversed, on the law, without costs, and the cross claim reinstated.

The motions before Supreme Court did not raise any issue with respect to the Primer Construction defendants' cross claim for contribution against Gordon, a nonmoving party. Accordingly, Supreme Court lacked the authority to search the record and dismiss that cross claim (see Castlepoint Ins. Co. v Moore, 109 AD3d 718, 719 [1st Dept 2013]; see also Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430 [1996]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 4, 2016

CLERK