By notice of motion filed on November 1, 2010, plaintiff Eddy Perez moves under motion sequence number eight, for an order pursuant to CPLR 3212 granting summary judgment on his claim for damages due to personal injury caused by a violation of Labor Law 240(1) as against all defendants. Defendants Ascend Spa, Inc. (hereafter "Ascend") and Tara Lendener (hereafter "Lendener") oppose the motion.

By notice of cross-motion filed on January 7, 2011, defendants and third-party plaintiffs Rover Realty, LLC (hereafter "Rover") and Bloomsbury Properties, LLC (hereafter "Bloomsbury"), jointly cross-move under motion sequence number nine and pursuant to CPLR 3212 for an order granting summary judgment in their favor: (1) dismissing plaintiff's claims under Labor Law 240(1) and 241(6); (2) finding co-defendant Lendener liable on their claims for indemnification against it; (3) finding them not liable on Lendener and Ascend Spa, Inc.'s claims for indemnification as against them. Plaintiff opposes Rover and Bloomsbury's joint cross-motion.

By notice of cross-motion filed on January 7, 2011, defendants and third-party defendants Lendener and Ascend cross-move under motion sequence number ten, for an order pursuant to CPLR 3212 dismissing plaintiff's complaint. Plaintiff opposes Lendener and Ascend's cross-motion.

Defendants Rover and Bloomsbury submitted an answer under index number 28194/2007 dated December 18, 2007. Defendant Torres did not answer the complaint.

On May 29, 2008, plaintiff filed a separate action against defendant Ascend by summons and verified complaint under index number 15543/2008. That complaint alleges twenty-nine allegations of fact in support of four causes of action for damages due to personal injury caused by negligence, and violations of Labor Law §§§ 240(1), 241(6) and 200.

Defendant Ascend joined issue under index number 15543/2008 with an answer dated August 1, 2008. [*2]

On July 15, 2008, defendants Rover and Bloomsbury commenced a third-party action against Ascend and Lendener by filing a summons and complaint under index number 75616/2008. As of the date of this order Ascend and Lendener have not filed an answer to the third party complaint and issue has not been joined.

On August 12, 2008, plaintiff filed a supplemental summons and complaint in the action bearing index number 28194/2007. The supplemental verified complaint names Ascend and Lendener as defendants to the first party action and makes forty-nine allegations of fact in support of three causes of action for damages for personal injury caused by negligence and violations of Labor Law §§ 240(1) and 241(6).

As of the date of this decision and order, no defendant has answered the supplemental summons and amended complaint under index number 28194/2007.

By notice of motion dated October 20, 2008, Rover and Bloomsbury moved to consolidate plaintiff's separate action against Ascend under index number 15543/2008 into the main action filed under index number 28194/2007. This court granted the motion on January 9, 2009.

On or about December 23, 2009, Ascend commenced a third party action against Torres with a third party summons and complaint under index number 15543/2008. Torres has not answered Ascend's third party complaint. A note of issue was filed on April 1, 2010.

Plaintiff's motion contains an affirmation of counsel with twelve exhibits labeled A-L and a separate memorandum of law. Exhibit A consists of a copy of this court's order dated October 8, 2010. Exhibits B and C consist of color copies of photographs allegedly identifying the defective condition which caused plaintiff's fall. Exhibit D consists of a copy of the summons and complaint filed on July 31, 2007. Exhibit E consists of a copy of Rover and Bloomsbury's answer dated December 18, 2007. Exhibit F consists of a copy of plaintiff's summons and verified complaint in the separate action against Ascend filed under index number 15543/2008. Exhibit G consists of a copy of Ascend's answer in the separate action filed under index number 15543/2008. Exhibit H consists of the order of this court dated January 9, 2009 consolidating index number 15443/2008 into the case bearing index number 28194/2007. Exhibit I consists of a copy of Rover and Bloomsbury's notice issued pursuant to CPLR 3402(b); and third-party summons and complaint against Ascend and Lendener. Exhibit J consists of copies of plaintiff's supplemental summons and verified complaint naming Ascend and Lendener as first party defendants. Exhibit K consists of a copy of the deposition transcript of Lendener dated March 15, 2010. Exhibit L consists of a copy of the deposition transcript of plaintiff dated September 8, 2010.

Ascend and Lendener's affirmation in opposition to plaintiff's motion dated January 6, 2011, contains an attorney's affirmation and three exhibits labeled A-C. Exhibit A consists of a copy of the plaintiff's deposition transcript dated September 8, 2009. Exhibit B consists of black and white photocopies of photographs of the location where plaintiff purportedly injured himself. Exhibit C consists of a copy of the deposition transcript of Lendener dated March 15, 2010.

Rover and Bloomsbury's cross-motion consists of an attorney's affirmation and sixteen exhibits labeled A-P. Exhibit A consists of a copy of the summons and complaint filed on July 31, 2007. Exhibit B consists of a copy of Rover and Bloomsbury's answer dated December 18, [*3]2007. Exhibit C consists of a copy of Rover and Bloomsbury's notice pursuant to CPLR 3402(b), and third-party summons and complaint naming Ascend and Lendener as third party defendants. Exhibit D consists of a copy of plaintiff's summons and verified complaint in the separate action against Ascend filed under index number 15543/2008. Exhibit E consists of a copy of Ascend's answer in the separate action filed under index number 15543/2008. Exhibit F consists of the order of this court dated January 9, 2009 consolidating index number 15443/2008 into the case bearing index number 28194/2007. Exhibit G consists of a copy of Ascend's notice pursuant to CPLR 3402(b), and third-party summons and complaint naming Torres as third party defendant. Exhibit H consists of a copy of this court's order of October 8, 2010. Exhibit I consists of a copy of the examination before trial of plaintiff. Exhibit J consists of a copy of Rover and Bloomsbury's color photographs allegedly depicting the scene of plaintiff's accident. Exhibit K consists of a copy of the deposition transcript of Lendener dated September 8, 2009. Exhibit L consists of a copy of plaintiff's worker's compensation records. Exhibit M consists of a copy of the affidavit of Koren Kennedy, the property manager of the premises where plaintiff was allegedly injured. Exhibit N consists of a copy of the deed of the premises located at 82-60 Austin Street, Kew Gardens, New York. Exhibit O consists of a copy of the deed of the premises located at 82-62 Austin Street, Kew Gardens, New York. Exhibit P consists of a copy of the lease and rider entered into by Lendener for the premises known as 82-60 thru 82-74 Austin Street, Kew Gardens, New York.

Plaintiff's affirmation in opposition to Rover and Bloomsbury's cross motion dated January 10, 2011 contains an attorney's affirmation. Plaintiff's second affirmation in opposition to Rover and Bloomsbury's cross motion dated February 6, 2011 contains an attorney's affirmation.

Rover and Bloomsbury submitted a reply, dated February 15, 2011, to plaintiff's affirmation in opposition, containing an attorney's affirmation and two exhibits labeled A and B. Exhibit A consists of a copy of an excerpt of the plaintiff's deposition transcript dated September 8, 2009. Exhibit B consists of black and white photocopies of photographs of location where plaintiff purportedly injured himself.

Ascend and Lendener's cross-motion consists of an attorney's affirmation and ten exhibits labeled A-J. Exhibit A consists of a copy of the summons and complaint filed on July 31, 2007. Exhibit B consists of a copy of Rover and Bloomsbury's answer dated December 18, 2007. Exhibit C consists of a copy of Rover and Bloomsbury's: (a) notice pursuant to CPLR 3402(b); and (b) third-party summons and complaint naming Ascend and Lendener as third party defendants. Exhibit D consists of a copy of plaintiff's summons and verified complaint in the separate action against Ascend filed under index number 15543/2008. Exhibit E consists of a copy of Ascend's answer in the separate action filed under index number 15543/2008. Exhibit F consists of the order of this court dated January 9, 2009 consolidating index number 15443/2008 into the case bearing index number 28194/2007. Exhibit G consists of a copy of Ascend's: (a) notice pursuant to CPLR 3402(b); and (b) third-party summons and complaint naming Torres as third party defendant. Exhibit H consists of a copy of the deposition transcript of plaintiff dated September 8, 2009. Exhibit I consists of black and white copies of photographs allegedly depicting the premises where plaintiff was injured. Exhibit J consists of a copy of the deposition transcript of Lendener dated March 15, 2010.

Defendants Rover and Bloomsbury's opposition, dated February 15, 2011, to Ascend and Lendener's cross motion contains an attorney's affirmation and three exhibits labeled A-C. [*4]Exhibit A consists of a copy of an excerpt of the deposition transcript of the plaintiff dated September 8, 2009. Exhibit B consists of a copy of an excerpt of the deposition transcript of Lendener dated March 15, 2010. Exhibit C consists of a copy of this court's order dated October 8, 2010.

Plaintiff's opposition, dated February 14, 2011, to Ascend and Bloomsbury's cross motion contains an attorney's affirmation.

CPLR 3212(a) provides in pertinent part, as follows:

(a) Time; kind of action. Any party may move for summary judgment in any action, after issue has been joined; provided however, that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown.

CPLR 3025 (d) provides in pertinent part, as follows:

(d) Responses to amended or supplemental pleadings. Except where otherwise prescribed by law or order of the court, there shall be an answer or reply to an amended or supplemental pleading if an answer or reply is required to the pleading being amended or supplemented. Service of such an answer or reply shall be made within twenty days after service of the amended or supplemental pleading to which it responds.

"A motion for summary judgment may not be made before issue is joined (CPLR 3212 [a]) and the requirement is strictly adhered to," (Rochester v. Chiarella, 65 NY2d 92, 101, 490 N.Y.S.2d 174, 179 [1985]). "An amended complaint having been served, it superceded the original complaint and became the only complaint in the case," (Schoenborn v. Kinderhill Corp., 98 AD2d 831, 832, 470 N.Y.S.2d 495, 497 [3rd Dept., 1983]; see also, Pourquoi M.P.S. v. Worldstar Int'l, 64 AD3d 551, 881 N.Y.S.2d 327 [2nd Dept., 2009]). Where a party had not answered an amended complaint, issue had not been joined and summary judgment may not be granted (see: Valentine Transit, Inc. v. Kernizan, 191 AD2d 159, 594 N.Y.S.2d 180 [1st Dept., 1993]).

The court has reviewed the various actions to determine whether issue has been joined and whether the summary judgment motions are ready for consideration. The court finds as follows:

In the first party action filed under index number 28194/2007, although Rover and Bloomsbury did answer plaintiff's original summons and complaint dated July 31, 2007, neither [*5]they nor any other defendant has answered plaintiff's supplemental summons and amended complaint dated August 12, 2008.

It is further noted that Ascend answered plaintiff's complaint in the separate action under the now consolidated index number of 15543/2008 on August 1, 2008. However, Ascend did not answer plaintiff's supplemental summons and amended complaint dated August 12, 2008. Therefore, issue is not joined as to all parties in the first party action.

In the third party action, Ascend and Lendener have not answered Rover and Bloomsbury's third party summons and complaint, filed under index number 75616/2008.

Accordingly, plaintiff's motion for summary judgment is premature. Rover and Bloomsbury's cross-motion for summary judgment seeking dismissal of plaintiff's claims under Labor Law 240(1) and 241(6) is premature. Rover and Bloomsbury's cross-motion for summary judgment for an order finding that Lendener must indemnifying them is premature. Rover and Bloomsbury's cross-motion for summary judgment for an order dismissing Lendener and Ascend's claims against it for indemnification is premature. Finally, Ascend and Lendener's cross-motion for summary judgment dismissing plaintiff's complaint is also premature.

Accordingly, all motions are denied without prejudice due to the failure to join issue as required by CPLR 3212 [a].

The foregoing constitutes the decision and order of this court.

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