Barone v. Gellis

50 A.D.2d 828, 377 N.Y.S.2d 105, 1975 N.Y. App. Div. LEXIS 11681

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1975
• Status: Published

Opinion

— In a defamation action in which, in a third-party complaint, it is alleged, inter alia, that the third-party defendants had published the defamatory statements at issue, the third-party defendants appeal from so much of an order of the Supreme Court, Nassau County, dated April 30, 1975, as denied their motion to dismiss the three causes of action contained in the third-party complaint. Order modified, on the law, by deleting from the decretal paragraph thereof, after the word "denied”, the following, "as to the second cause of action and granted as to the first and third causes of action”. As so modified, order affirmed insofar as appealed from, without costs. The liability of the third-party defendants, as alleged in the first and third causes of action of the third-party complaint, does not arise from the liability of defendants to plaintiffs (see Horn v Ketchum, 27 AD2d 759). Here, the third-party claim asserted in the first and third causes of action is clearly not conditioned upon, does not arise from, and is not based upon the liability of defendants to plaintiffs. Martuscello, Acting P. J., Latham, Cohalan, Margett and Brennan, JJ., concur.