SEUDATH v. MOTT

ORDERED that the order is affirmed, with costs.

Contrary to the plaintiffs' contention, the appellant, a third-party defendant, is aggrieved by the order denying his motion for summary judgment dismissing their complaint insofar as asserted against the defendant third-party plaintiff Russ Gusta, and thus may appeal from the order ( see, CPLR 5511; Ciraolo v. Melville Ct. Assocs., 221 A.D.2d 582).

The Supreme Court properly concluded that there are issues of fact as to whether Gusta assumed a duty to the injured plaintiff and, if so, whether his negligence, if any, was a proximate cause of the injuries sustained ( see, Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507; Wolf v. City of New York, 39 N.Y.2d 568; Cohen v. Heritage Motor Tours, 205 A.D.2d 105; Gordon v. Muchnick, 180 A.D.2d 715).

ALTMAN, J.P., H. MILLER, SCHMIDT, and SMITH, JJ., concur.