Pinnacle Constr., Inc. v City of Syracuse

Pinnacle Constr., Inc. v City of Syracuse 2006 NY Slip Op 09797 [35 AD3d 1204] December 22, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 14, 2007

Pinnacle Construction, Inc., Appellant, v City of Syracuse, Respondent and Third-Party Plaintiff-Respondent. Clough Harbour & Associates, LLP, Third-Party Defendant-Respondent-Appellant.

—[*1]Appeals from an order of the Supreme Court, Onondaga County (Edward D. Carni, J.), entered November 30, 2005 in a breach of contract action. The order, among other things, denied the motion of third-party defendant for summary judgment dismissing the amended third-party complaint and plaintiff's motion for summary judgment.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action to recover sums allegedly due for additional work performed in the removal and reinstallation of a booster pump station in defendant, City of Syracuse (City). The City then commenced a third-party action seeking, inter alia, contractual indemnification from third-party defendant, the engineering firm that provided consulting services on the project. Supreme Court properly denied third-party defendant's motion seeking summary judgment dismissing the amended third-party complaint and plaintiff's cross motion seeking summary judgment on the amended complaint. Both third-party defendant and plaintiff failed to meet their respective initial burdens of establishing their entitlement to judgment as a matter of law (see generally CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d [*2]320, 324 [1986]). Present—Scudder, P.J., Martoche, Centra and Green, JJ.