WADE WESTBROOKE v. [And a Third-Party Action]. (2005)

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered March 10, 2005, which, inter alia, denied defendants-appellants' motion for summary judgment dismissing the complaint as against them or, in the alternative, for summary judgment upon their third-party claim for indemnification, unanimously affirmed, without costs.

Appellants, in support of that branch of their motion seeking summary judgment dismissing the complaint, failed to make the requisite showing that they had neither actual nor constructive notice of the alleged hazard.   While appellants stress that plaintiff did not notice the hazard on the morning of, and just prior to the accident, that circumstance does not definitively establish their lack of notice (see Straus v. New Wah Fung Corp., 269 A.D.2d 140, 703 N.Y.S.2d 7 [2000] ).   Since there are issues of fact as to whether negligence on the part of appellants or XYZ caused plaintiff's harm, appellants' motion for summary judgment was properly denied.