—Order, Supreme Court, New York County (Stephen Crane, J.), entered July 13, 1999, which, in an action by a laborer for personal injuries, insofar as appealed from, denied third-party defendant-appellant’s motion for summary judgment dismissing the third-party complaint as against it, unanimously affirmed, without costs.
There being no dispute on appeal that the third-party action cannot be maintained if appellant is a sole proprietorship owned by plaintiff, the motion was properly denied on the ground that an issue of fact exists as to whether appellant is a sole proprietorship or a partnership. Concur — Nardelli, J. P., Tom, Mazzarelli, Wallach and Andrias, JJ.