Opinion
November 28, 2000.
Order, Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered on or about October 25, 1999, which denied the third-party defendant's motion for summary judgment dismissing the third-party complaint and all cross claims, unanimously affirmed, without costs.
Frank Gulino, for plaintiffs-respondents.
William E. Marsala, for third-party defendant-appellant.
Before: Rosenberger, J.P., Nardelli, Ellerin, Lerner, Andrias, JJ.
Because the conditional order striking the third-party defendant's answer became self-executing upon failure to comply with its terms (see,Dimitratos v. City of New York, 180 A.D.2d 414; Simmons v. Bd. of Educ., 169 A.D.2d 727), the third-party defendant had no pleading before the court. Accordingly, its motion for summary judgment was untimely and properly denied (see, Alro Bldrs. Contr., Inc. v. Chicken Koop, Inc., 78 A.D.2d 512; CPLR 3212[a]). In any event, summary judgment in favor of the third-party defendant was unavailable on the merits since there exist material issues of fact as to whether it created the alleged hazardous condition or had notice thereof.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.