Opinion
March 29, 1995
Appeal from the Supreme Court, Kings County (Dowd, J.).
Ordered that the order is affirmed, with costs.
The Supreme Court properly denied the appellant's motion for summary judgment dismissing the third-party complaint. There are material, triable issues of fact with respect to whether the appellant failed to timely notify the third-party plaintiff that an action had been commenced against the plaintiff and whether and to what extent this alleged failure proximately caused the losses incurred by the third-party plaintiff. Under these circumstances, summary judgment is unavailable to the appellant (see, Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851; Zuckerman v. City of New York, 49 N.Y.2d 557). Sullivan, J.P., Lawrence, Copertino and Joy, JJ., concur.