WATKINS v. (and a third-party action).

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Supreme Court, Appellate Division, Second Department, New York.

Leroy WATKINS, plaintiff, v. TPK CONSTRUCTION CORP., respondent, Jamaica Water Supply Company, appellant, et al., defendant (and a third-party action).

Decided: March 22, 1999

SONDRA MILLER, J.P., THOMAS R. SULLIVAN, WILLIAM D. FRIEDMANN and DANIEL F. LUCIANO, JJ. Rivkin, Radler & Kremer, Uniondale, N.Y. (Evan H. Krinick and Cheryl F. Korman of counsel), for appellant. Curtis, Zaklukiewicz, Vasile, Devine & McElhenny, Merrick, N.Y. (Robert M. Smith of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant Jamaica Water Supply Company appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Polizzi, J.), dated February 18, 1998, as denied its motion for summary judgment on its third cross claim against the defendant TPK Construction Corp.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The defendant Jamaica Water Supply Company (hereinafter Jamaica Water) moved for summary judgment on its third cross claim against the defendant TPK Construction Corp. (hereinafter TPK), based upon the alleged failure of TPK to obtain liability insurance covering, inter alia, Jamaica Water, as required by TPK's construction contract with the State of New York. In support of its motion, however, Jamaica Water failed to submit evidence in admissible form establishing that TPK failed to obtain such insurance.   Nor did Jamaica Water establish that its potential liability arises out of activities covered by the contract (see, Ceron v. Rector, Church Wardens & Vestry Members of Trinity Church, 224 A.D.2d 475, 476, 638 N.Y.S.2d 476).   Thus, the Supreme Court properly denied Jamaica Water's motion (see, Ayotte v. Gervasio, 81 N.Y.2d 1062, 1063, 601 N.Y.S.2d 463, 619 N.E.2d 400;  Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).

MEMORANDUM BY THE COURT.

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