Merchants National Bank v. Duplex Truck & Equipment Sales, Inc.

Appellate Division of the Supreme Court of New York

Merchants National Bank v. Duplex Truck & Equipment Sales, Inc.

33 A.D.2d 988, 307 N.Y.S.2d 382, 1970 N.Y. App. Div. LEXIS 5762

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

DecidedJanuary 15, 1970

StatusPublished

Cited by1 cases

This text of 33 A.D.2d 988 (Merchants National Bank v. Duplex Truck & Equipment Sales, Inc.) 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.

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Merchants National Bank v. Duplex Truck & Equipment Sales, Inc., 33 A.D.2d 988, 307 N.Y.S.2d 382, 1970 N.Y. App. Div. LEXIS 5762 (N.Y. Ct. App. 1970).

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Opinion

Order unanimously reversed, with costs, and motion granted. The amended third-party complaint shall be served within 20 days after entry of the order herein. Memorandum: Appellant seeks to serve an amended third-party complaint and to add as additional third-party defendants, the executors of the" will of the owner of a majority of the stock of the present third-party defendant corporations. The proposed pleading alleges that the decedent owned or controlled the stock of the primary defendant and the proposed third-party complaint seeks to have the corporate structure pierced and the estate indemnify appellant against any liability. Leave to amend should be freely given (CPLR 3025, subd. [b]) and, since no prejudice is claimed to result from the amendment, we reverse because it cannot be said that the proposed amended complaint is “ palpably insufficient.” (Cf. Norton v. Norton, 12 A D 2d 1003.) We likewise hold that appellant’s motion to add the additional third-party defendants should be granted and, under the circumstances, appellant should have an opportunity to assert his claim and the third-party defendants to make such motions against it as they may deem advisable. (6 Carmody-Wait 2d, New York Practice, pp. 86-89; Martin v. Katz, 15 A D 2d 767; Grandview Constr. Corp. v. Roreck Constr. Co., 14 A D 2d 909.) In granting this motion we are not passing upon the sufficiency or merits of the proposed pleading. (Amherst Bowling Center v. Dolce, 11 A D 2d 1079.) (Appeal from order of Onondaga Special Term denying motion to amend complaint and add parties in action on promissory note.) Present— Goldman, P. J., Marsh, Gabrielli, Moule and Bastow, JJ.

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Order unanimously reversed, with costs, and motion granted. The amended third-party complaint shall be served within 20 days after entry of the order herein. Memorandum: Appellant seeks to serve an amended third-party complaint and to add as additional third-party defendants, the executors of the" will of the owner of a majority of the stock of the present third-party defendant corporations. The proposed pleading alleges that the decedent owned or controlled the stock of the primary defendant and the proposed third-party complaint seeks to have the corporate structure pierced and the estate indemnify appellant against any liability. Leave to amend should be freely given (CPLR 3025, subd. [b]) and, since no prejudice is claimed to result from the amendment, we reverse because it cannot be said that the proposed amended complaint is “ palpably insufficient.” (Cf. Norton v. Norton, 12 A D 2d 1003.) We likewise hold that appellant’s motion to add the additional third-party defendants should be granted and, under the circumstances, appellant should have an opportunity to assert his claim and the third-party defendants to make such motions against it as they may deem advisable. (6 Carmody-Wait 2d, New York Practice, pp. 86-89; Martin v. Katz, 15 A D 2d 767; Grandview Constr. Corp. v. Roreck Constr. Co., 14 A D 2d 909.) In granting this motion we are not passing upon the sufficiency or merits of the proposed pleading. (Amherst Bowling Center v. Dolce, 11 A D 2d 1079.) (Appeal from order of Onondaga Special Term denying motion to amend complaint and add parties in action on promissory note.) Present— Goldman, P. J., Marsh, Gabrielli, Moule and Bastow, JJ.

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Bluebook (online)

33 A.D.2d 988, 307 N.Y.S.2d 382, 1970 N.Y. App. Div. LEXIS 5762, Counsel Stack Legal Research, https://law.counselstack.com/opinion/merchants-national-bank-v-duplex-truck-equipment-sales-inc-nyappdiv-1970.

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