Berg v. City of New York

In a negligence action to recover damages for personal injuries sustained by plaintiff Eva Berg, etc., the third-party defendant appeals -from an order of the Supreme Court, Kings County, dated February 15, 1973, which denied her motion to dismiss the third-party complaint. Order affirmed, without costs. In our view an appeal lies from an order denying a written motion on notice to dismiss a third-party complaint following the trial of an action in which the jury was unable to reach agreement as to the merits of the main action (see Richardson v. Wengate, 33 A D 2d 947). We affirm in the interests of justice in order to furnish the defendant city the opportunity to adduce *771proof that the defective condition of the sidewalk was the result of the cellar door, a special use or construction from which the third-party defendant derives a benefit (see Niekelsburg v. City of New York, 263 App. Div. 625). Rabin, P. J., Munder, Latham, Shapiro and Gulotta, JJ., concur.