Opinion
February 9, 2000
Order, Supreme Court, Bronx County (Gerald Esposito, J.), entered October 9, 1998, which, inter alia, granted plaintiff's cross motion to dismiss the third-party complaint and granted plaintiff's motion for summary judgment on the issue of liability, and order, same court and Justice, entered April 1, 1999, which granted defendant/third-party plaintiff's motion for reargument and renewal and thereupon adhered to its prior determination, unanimously affirmed, without costs.
Howard A. Suckle, for Plaintiffs-Respondents.
Eunice C. Jordan, for Defendant-Appellant/Third-Party Plaintiff-Appellant.
Jonathan T. Uejio, for Third-Party Defendants-Respondents.
SULLIVAN, J.P., WILLIAMS, MAZZARELLI, WALLACH, LERNER, JJ.
The third-party action, commenced on May 13, 1998, was properly dismissed as untimely, since the parties stipulated that all third-party actions would be commenced by January 13, 1998 (see,Natl. Enter. Corp. v. Dechert Price Rhoads, 181 A.D.2d 443), and defendant/third party plaintiff failed to proffer an adequate excuse for the delay.
Also proper was the court's grant of plaintiff's motion for summary judgment on the issue of defendant's liability under Labor Law § 240 Lab.(1). It is undisputed that plaintiff, in the course of replacing a floor in premises leased by defendant, fell from the second story of the building and that there were no scaffolds or other safety guards in place at the time of the fall (see,Kaborycha v. Kimmins Indus. Serv. Corp., 243 A.D.2d 687).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.