Giandana v Providence Rest Nursing Home, 8 NY3d 859 (2007)

2007 NY Slip Op 01388 [8 NY3d 859]
February 20, 2007
Court of Appeals

[*1]

Nancy Giandana, Individually and as Administratrix of the Estate of Anna E. Demuth, Deceased, Respondent,
v
Providence Rest Nursing Home et al., Defendants. Providence Rest Nursing Home, Third-Party Plaintiff, v Ramar Services, Inc., Third-Party Defendant, and Becky Akosah, Third-Party Defendant-Appellant.

Decided February 20, 2007

Giandana v Providence Rest Nursing Home, 32 AD3d 126, reversed.

{**8 NY3d at 860}OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, plaintiff’s motion for partial summary judgment against Providence Rest Nursing Home denied, and the [*2]certified question answered in the negative.

Under plaintiff’s theory of liability, third-party defendant Akosah was the only witness to the alleged negligent acts involving decedent. Nonetheless, Akosah has yet to be deposed or to otherwise participate in discovery. CPLR 1008 grants a third-party defendant all “the rights of a party adverse to the other parties in the action, including the right to counter-claim, cross-claim and appeal.” In this appeal by third-party defendant Akosah, questions of fact relating to how decedent was injured, whether Akosah was involved, and whether the nursing home was otherwise negligent precluded a grant of partial summary judgment.

Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith and Pigott concur in memorandum; Judge Jones taking no part.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, etc.