Coluccio v. R. W. Urbanek

Appellate Division of the Supreme Court of New York

Coluccio v. R. W. Urbanek

129 A.D.2d 551, 514 N.Y.S.2d 45, 1987 N.Y. App. Div. LEXIS 45221

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 6, 1987

StatusPublished

Cited by5 cases

This text of 129 A.D.2d 551 (Coluccio v. R. W. Urbanek) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Coluccio v. R. W. Urbanek, 129 A.D.2d 551, 514 N.Y.S.2d 45, 1987 N.Y. App. Div. LEXIS 45221 (N.Y. Ct. App. 1987).

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Opinion

In a medical malpractice action, the third-party defendant appeals from an order of the Supreme Court, Kings County (Monteleone, J.), dated April 8, 1986, which granted the third-party plaintiffs motion to strike the third-party defendant’s second and third affirmative defenses, denied the third-party defendant’s cross motion to dismiss or sever the third-party action, and granted leave to third-party plaintiff to amend the third-party complaint.

Ordered that the order is affirmed, with costs.

While the third-party complaint did not provide sufficient notice of the transactions and occurrences involved, the court did not err in granting leave to amend the third-party complaint.

Under the circumstances of this case, the court also did not err in striking the defense of laches and in declining to sever the third-party action. Because of the backlog in the Medical Malpractice Panel Calendar, the third-party action is not likely to unduly delay the main action (see, Leavitt v New York City Tr. Auth., 111 AD2d 907; cf., Shanley v Callanan Indus., 54 NY2d 52).

The court also did not abuse its discretion in striking the appellant’s third affirmative defense, which stated that the third-party complaint failed to state a cause of action (see, Bentivegna v Meenan Oil Co., 126 AD2d 506; Torres v Southside Hosp., 84 AD2d 836; Glenesk v Guidance Realty Corp., 36 AD2d 852). It should be noted that the striking of this defense does not constitute a ruling on the merits, but is rather a procedural direction that the claim that a complaint fails to state a cause of action may not be interposed in an answer (see, Torres v Southside Hosp., supra; see also, Siegel, Supplementary Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:38, at 13 [1987 Supp Pamph]). Brown, J. P., Niehoff, Eiber and Sullivan, JJ., concur.

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In a medical malpractice action, the third-party defendant appeals from an order of the Supreme Court, Kings County (Monteleone, J.), dated April 8, 1986, which granted the third-party plaintiffs motion to strike the third-party defendant’s second and third affirmative defenses, denied the third-party defendant’s cross motion to dismiss or sever the third-party action, and granted leave to third-party plaintiff to amend the third-party complaint.

Ordered that the order is affirmed, with costs.

While the third-party complaint did not provide sufficient notice of the transactions and occurrences involved, the court did not err in granting leave to amend the third-party complaint.

Under the circumstances of this case, the court also did not err in striking the defense of laches and in declining to sever the third-party action. Because of the backlog in the Medical Malpractice Panel Calendar, the third-party action is not likely to unduly delay the main action (see, Leavitt v New York City Tr. Auth., 111 AD2d 907; cf., Shanley v Callanan Indus., 54 NY2d 52).

The court also did not abuse its discretion in striking the appellant’s third affirmative defense, which stated that the third-party complaint failed to state a cause of action (see, Bentivegna v Meenan Oil Co., 126 AD2d 506; Torres v Southside Hosp., 84 AD2d 836; Glenesk v Guidance Realty Corp., 36 AD2d 852). It should be noted that the striking of this defense does not constitute a ruling on the merits, but is rather a procedural direction that the claim that a complaint fails to state a cause of action may not be interposed in an answer (see, Torres v Southside Hosp., supra; see also, Siegel, Supplementary Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:38, at 13 [1987 Supp Pamph]). Brown, J. P., Niehoff, Eiber and Sullivan, JJ., concur.

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129 A.D.2d 551, 514 N.Y.S.2d 45, 1987 N.Y. App. Div. LEXIS 45221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coluccio-v-r-w-urbanek-nyappdiv-1987.

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