CRESPO v. FRANCINI (2025)

Order, Supreme Court, Bronx County (Joseph E. Cappella, J.), entered on or about August 31, 2023, which, to the extent appealed from, denied in part third-party defendant Dr. Franchini's motion for summary judgment dismissing the third-party complaint, unanimously reversed, on the law, without costs, and the motion granted in its entirety.  The Clerk is directed to enter judgment dismissing the third-party complaint.

Defendant/third-party plaintiff John DeBello, D.P.M. and third-party plaintiff New York Footcare Services, PLLC, sued herein as defendant New York Footcare of the Bronx, PLLC (together, defendants) commenced this third-party action against Dr. Franchini for common-law indemnification and contribution.  Defendants elected not to oppose Dr. Franchini's motion to dismiss the third-party complaint by not presenting either evidence or arguments in opposition to the motion.  “Consequently, they are deemed to have admitted, with respect to the allegations made by [Dr. Franchini] in support of [his] summary judgment motion, that there exists no material question of fact.  Because defendants neither opposed the dismissal of their third-party complaint nor defend it on appeal, it should be dismissed as abandoned, and Dr. Franchini's motion should be granted in its entirety (see Norris v. Innovative Health Sys., Inc., 184 A.D.3d 471, 473, 126 N.Y.S.3d 122 [1st Dept. 2020];  see also Patrick v. 278 8th Assoc., 233 A.D.3d 415, 417, 220 N.Y.S.3d 756 [1st Dept. 2024];  Jones v. Vornado N.Y. RR One L.L.C., 223 A.D.3d 467, 468, 203 N.Y.S.3d 277 [1st Dept. 2024]).  In light of the foregoing, we need not consider Dr. Franchini's remaining arguments.

Defendants’ argument that they are entitled to summary judgment dismissing plaintiff's complaint in its entirety is not properly before us because defendants did not notice an appeal from that separate order (see e.g. Kasmin v. Josephs, 228 A.D.3d 431, 433, 212 N.Y.S.3d 608 [1st Dept. 2024];  Agurto v. One Boerum Dev. Partners LLC, 221 A.D.3d 442, 443, 198 N.Y.S.3d 66 [1st Dept. 2023];  Kerns v. Ishida, 208 A.D.3d 1102, 1103, 175 N.Y.S.3d 22 [1st Dept. 2022]).  Nor may we search the record on Dr. Franchini's motion and award defendants summary judgment dismissing the complaint as against them because Dr. Franchini's motion did not seek any relief regarding the complaint (see Cerbone v. Lauriano, 170 A.D.3d 942, 943, 96 N.Y.S.3d 621 [2d Dept. 2019];  see also Christopher v. Piard, 221 A.D.3d 485, 485, 198 N.Y.S.3d 699 [1st Dept. 2023]).