De Luca v. Itek Corp.

59 A.D.2d 885, 399 N.Y.S.2d 35, 1977 N.Y. App. Div. LEXIS 14070

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 7, 1977
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries, the third-party defendant Butterick Fashion Marketing Co. appeals from an order of the Supreme Court, Kings County, dated April 8, 1977, which denied its motion to dismiss the third-party complaint on the ground that it fails to state a cause of action. Order reversed, with $50 costs and disbursements, and motion to dismiss granted, without prejudice to the service of an amended third-party complaint. Respondent’s time to serve an amended third-party complaint is extended until 20 days after service upon it of a copy of the order to be made herein, with notice of entry thereof. The third-party complaint does not set forth the material elements of a cause of action in negligence (see CPLR 3013). What the third-party complaint states, rather, is that if the plaintiff in the main action recovers, then the damages were caused by the negligence of the third-party defendant-appellant; and, in that event, defendant third-party plaintiff-respondent is allegedly entitled to be indemnified by the third-party defendant or there should be an apportionment of responsibility. This in no way indicates what respondent intends to prove respecting how the third-party defendant breached its duty to the plaintiff and was negligent. The third-party complaint fails to state the material elements of a cause of action (see CPLR 3013; Lewis v Village of Deposit, 40 AD2d 730, affd 33 NY2d 532; Foley v D’Agostino, 21 AD2d 60). Gulotta, P. J., Latham, Damiani and O’Connor, JJ., concur.