Micari v. Van Kesteren

Appellate Division of the Supreme Court of New York

Micari v. Van Kesteren

121 A.D.2d 524, 504 N.Y.S.2d 23, 1986 N.Y. App. Div. LEXIS 58497

Appellate Division of the Supreme Court of the State of New York·Decided June 16, 1986·Published·Cited by 3 cases

Opinion

In an action to recover damages for personal injuries, etc., William Van Kesteren appeals (1) from an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated November 23, 1984, which granted the plaintiffs leave to serve an amended complaint asserting a direct claim against him, and (2) from an order of the same court (Doyle, J.), dated March 14, 1985, which granted the plaintiffs’ motion to dismiss his second affirmative defense of lack of jurisdiction.

Orders affirmed, with one bill of costs.

Special Term properly granted the plaintiffs leave to serve an amended complaint asserting a direct claim against the appellant (see, Duffy v Horton Mem. Hosp., 66 NY2d 473; Cucuzza v Vaccarro, 67 NY2d 825, affg 109 AD2d 101).

The plaintiffs were not obligated to serve a supplemental summons along with their amended complaint because the third-party defendant was not a "new party” within the meaning of CPLR 305 (a). He was "fully a party to this action with clear notice of the allegations charging him with ultimate liability” from the time of service of the third-party complaint (see, Cucuzza v Vaccarro, 109 AD2d 101, 104, supra; [525]*525Holst v Edinger, 93 AD2d 313, 315-316). Mangano, J. P., Gibbons, Brown and Kooper, JJ., concur.

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In an action to recover damages for personal injuries, etc., William Van Kesteren appeals (1) from an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated November 23, 1984, which granted the plaintiffs leave to serve an amended complaint asserting a direct claim against him, and (2) from an order of the same court (Doyle, J.), dated March 14, 1985, which granted the plaintiffs’ motion to dismiss his second affirmative defense of lack of jurisdiction.

Orders affirmed, with one bill of costs.

Special Term properly granted the plaintiffs leave to serve an amended complaint asserting a direct claim against the appellant (see, Duffy v Horton Mem. Hosp., 66 NY2d 473; Cucuzza v Vaccarro, 67 NY2d 825, affg 109 AD2d 101).

The plaintiffs were not obligated to serve a supplemental summons along with their amended complaint because the third-party defendant was not a "new party” within the meaning of CPLR 305 (a). He was "fully a party to this action with clear notice of the allegations charging him with ultimate liability” from the time of service of the third-party complaint (see, Cucuzza v Vaccarro, 109 AD2d 101, 104, supra; [525]*525Holst v Edinger, 93 AD2d 313, 315-316). Mangano, J. P., Gibbons, Brown and Kooper, JJ., concur.

Micari v. Van Kesteren, 121 A.D.2d 524, 504 N.Y.S.2d 23, 1986 N.Y. App. Div. LEXIS 58497 (N.Y. Ct. App. 1986).

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121 A.D.2d 524 (Micari v. Van Kesteren) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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