Abbott v. Otis Elevator Co.

166 A.D.2d 470, 560 N.Y.S.2d 689, 1990 N.Y. App. Div. LEXIS 12572

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 9, 1990
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries, the defendant Rockefeller Center, Inc., appeals from an order of the Supreme Court, Kings County (Cohen, J.), dated November 22, 1988, which denied its motion to dismiss the complaint as asserted against it.

Ordered that the order is affirmed, with costs.

When causes of action exist against several persons, the commencement of an action against one or more individuals does not constitute an election of remedies which bars an action against other potential defendants (see, CPLR 3002 [a]). The record in this case reveals that the plaintiff initiated an action against three defendants whom she believed to be responsible for her injuries. Following investigation, she instituted a second action against the appellant Rockefeller Center, Inc.

As the action against Rockefeller Center, Inc., was timely commenced and constituted a separate action, we find that this second action did not involve adding a party to a pending litigation which would require leave of the court. We note that the two actions have been consolidated. Bracken, J. P., Lawrence, Eiber, Harwood and Rosenblatt, JJ., concur.