
    Esther B. Wallace, Plaintiff, v City of New York, Defendant and Third-Party Plaintiff-Respondent, et al., Defendant. Naclerio Contracting Co., Inc., Third-Party Defendant; Aetna Casualty and Surety Co., Third-Party Defendant-Appellant.
    [666 NYS2d 469]
   —In an action to recover damages for personal injuries, the third-party defendant Aetna Casualty and Surety Co., appeals from (1) an order of the Supreme Court, Kings County (Hutcherson, J.), entered October 3, 1996, which denied its motion to dismiss the amended third-party complaint pursuant to CPLR 3211 (a) (1) and (7), and (2) so much of an order of the same court, dated May 6, 1997, as, upon granting its motion, in effect, to reargue the motion to dismiss, adhered to the original determination.

Ordered that the appeal from the order entered October 3, 1996, is dismissed, without costs or disbursements, as that order was superseded by the order dated May 6, 1997, made upon reargument; and it is further,

Ordered that the order dated May 6,1997, is affirmed insofar as appealed from, without costs or disbursements.

Contrary to the appellant’s assertion, documentary evidence submitted in support of its motion to dismiss does not preclude a finding that it could be held liable under one of the theories set forth in the third-party complaint. The Supreme Court, therefore, properly concluded that the third-party complaint states a cause of action (see, Becker v Schwartz, 46 NY2d 401, 408; Guggenheimer v Ginzburg, 43 NY2d 268, 275). O’Brien, J. P., Joy, Friedmann and Goldstein, JJ., concur.  