Opinion
2002-10235
Argued May 16, 2003.
June 9, 2003.
In an action to recover damages for personal injuries, the third-party defendant Time Warner Cable, Inc., n/k/a Time Warner Operations, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Flug, J.), dated September 10, 2002, as, in effect, upon granting its motion for renewal, adhered to a prior determination in an order entered January 24, 2002, denying its motion for summary judgment dismissing the third-party actions asserted against it.
Newman Fitch Altheim Myers, P.C., New York, N.Y. (Harry Steinberg and Charles W. Kreines of counsel), for third-party defendant-appellant.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and John Hogrogian of counsel), for defendant third-party plaintiff-respondent.
Before: MYRIAM J. ALTMAN, J.P., ANITA R. FLORIO, THOMAS A. ADAMS, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, upon renewal, the motion for summary judgment is granted, and the third-party actions against the appellant are dismissed.
After the Supreme Court, in effect, granted renewal, it should have vacated its prior order and granted summary judgment to Time Warner Cable, Inc., n/k/a Time Warner Operations, Inc. (hereinafter Time Warner).
Time Warner made a prima facie showing of entitlement to judgment as a matter of law. In response, the City of New York failed to raise a triable issue of fact with respect to whether Time Warner created the sidewalk defect on which the plaintiff allegedly tripped (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324; Hsin Kuo Chiu v. Supermarkets Gen., 288 A.D.2d 267).
The City's contention concerning the granting of renewal is improperly raised for the first time on appeal (see Sandoval v. Juodzevich, 293 A.D.2d 595).
ALTMAN, J.P., FLORIO, ADAMS and RIVERA, JJ., concur.