Opinion
Submitted October 14, 1999
November 30, 1999
In an action to recover damages for personal injuries, etc., the third-party defendant Arthur Mott appeals from an order of the Supreme Court, Queens County (LaTorella, J.), dated September 16, 1998, which denied his motion for summary judgment dismissing the complaint insofar as it is asserted against the defendant third-party plaintiff Russ Gusta.
Agoglia, Fassberg, Holland Crowe, P.C., Mineola, N.Y. (Eileen Farrell of counsel), for third-party defendant-appellant.
Adler Gross Levien Zwal, New York, N.Y. (Michael Zwal of counsel), for respondents.
MYRIAM J. ALTMAN, J.P., HOWARD MILLER, ROBERT W. SCHMIDT, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
Contrary to the plaintiffs' contention, the appellant, a third-party defendant, is aggrieved by the order denying his motion for summary judgment dismissing their complaint insofar as asserted against the defendant third-party plaintiff Russ Gusta, and thus may appeal from the order ( see, CPLR 5511; Ciraolo v. Melville Ct. Assocs., 221 A.D.2d 582).
The Supreme Court properly concluded that there are issues of fact as to whether Gusta assumed a duty to the injured plaintiff and, if so, whether his negligence, if any, was a proximate cause of the injuries sustained ( see, Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507; Wolf v. City of New York, 39 N.Y.2d 568; Cohen v. Heritage Motor Tours, 205 A.D.2d 105; Gordon v. Muchnick, 180 A.D.2d 715).
ALTMAN, J.P., H. MILLER, SCHMIDT, and SMITH, JJ., concur.