DECISION ORDER
ORDERED that the appeal from so much of the order as failed to grant that branch of the cross motion of the defendant Serge Elevator Co., Inc., which was for summary judgment dismissing the third-party complaint and all cross-claims insofar as asserted against it based upon the Kingsbrook Jewish Center's alleged spoliation of evidence is dismissed, as that branch of the cross motion remains pending and undecided ( see Katz v. Katz, 68 A.D.2d 536, 542-543); and it is further,
ORDERED that the order is affirmed insofar as reviewed; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
Both the defendant Kingsbrook Jewish Center (hereinafter Kingsbrook) and the defendant Serge Elevator Co., Inc. (hereinafter Serge), failed to satisfy their initial burdens of making a prima facie showing of entitlement to judgment as a matter of law by eliminating any triable issues of fact from the case ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851). In particular, they failed to demonstrate that the subject elevator was not defective, that they lacked actual and constructive notice of the alleged defects ( see Carrasco v. Millar El. Indus., 305 A.D.2d 353), or that their alleged negligence was not a proximate cause of the plaintiff's accident and injuries ( see Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308).
In addition, resolution of the issue of Serge's duty to indemnify Kingsbrook must await a determination as to whether the plaintiff's injuries were caused by any negligence on the part of Kingsbrook ( see Chacon v. Calimia Constr. Co., 306 A.D.2d 306; Medina v. New York El. Co., 250 A.D.2d 656; Trustees of Columbia Univ. v. Mitchell/Giurgola Assoc., 109 A.D.2d 449).
RITTER, J.P., FLORIO, SMITH and H. MILLER, JJ., concur.