Mobil Oil Corp. v. Matthews Industrial Piping Co.

In an action to recover damages for breach of contract, the defendant Matthews Industrial Piping Co., Inc., appeals from an order of the Supreme Court, Richmond County (Cusick, J.), dated October 8, 1992, which granted the motion of Mobil Oil Corporation for summary judgment on liability and ordered that the matter be placed on the calendar for an assessment of damages.

Ordered that the order is reversed, on the law, with costs, the motion for summary judgment is denied, and the complaint is dismissed.

In a separate action to recover damages for personal injury, *743Mobil Oil Corporation (hereinafter Mobil) was sued, and, in turn, impleaded Matthews Industrial Piping Co., Inc., as a third-party defendant. Following a verdict on liability in that action, Mobil’s motion to sever this cause of action against Matthews was granted. However, in Atkinson v Mobil Oil Corp. (205 AD2d 719 [decided herewith]), this Court reversed the order granting the motion to sever and denied the motion because this cause of action was never properly pleaded. Thus, in light of this Court’s holding in Atkinson v Mobil Oil Corp. (supra), the order granting Mobil’s motion for summary judgment must be reversed, the motion denied, and the complaint dismissed. Sullivan, J. P., Balletta, Joy and Friedmann, JJ., concur.