CHAUDHRY v. LYNEST ASSOCIATES

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, upon renewal, the motion for summary judgment is granted, and the third-party actions against the appellant are dismissed.

After the Supreme Court, in effect, granted renewal, it should have vacated its prior order and granted summary judgment to Time Warner Cable, Inc., n/k/a Time Warner Operations, Inc. (hereinafter Time Warner).

Time Warner made a prima facie showing of entitlement to judgment as a matter of law. In response, the City of New York failed to raise a triable issue of fact with respect to whether Time Warner created the sidewalk defect on which the plaintiff allegedly tripped (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324; Hsin Kuo Chiu v. Supermarkets Gen., 288 A.D.2d 267).

The City's contention concerning the granting of renewal is improperly raised for the first time on appeal (see Sandoval v. Juodzevich, 293 A.D.2d 595).

ALTMAN, J.P., FLORIO, ADAMS and RIVERA, JJ., concur.