Mosca v. Pensky

41 A.D.2d 775, 342 N.Y.S.2d 76, 1973 N.Y. App. Div. LEXIS 4855

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 26, 1973
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries, etc., one of the third-party defendants, the Village of Pelham Manor, appeals from so much of an order of the Supreme Court, Westchester County, dated September 5, 1972, as (1) granted the motion of defendant third-party plaintiff, Herbert Pensky, to reargue a prior motion of said third-party defendant to dismiss the third-party complaint as against said third-party defendant; (2) vacated and recalled the decision of said court dated January 8, 1971 and the order of said court entered January 22, 1971, which decision and order had granted said prior motion; and (3) reinstated the third-party complaint. Order affirmed insofar as appealed, from, without costs. The rule of relative contribution adopted by the Court of Appeals in Bole V. Bow Chem. Co. (30 N V 2d 143) applies to the case at bar (Kelly v. Long Is. Light. Co., 31 N V 2d 25; Moreno v. Galdorisi, 39 A D 2d 450). In their efforts to best effectuate the rule of Bole and to do justice to the parties before them, the New York courts have followed the Dole rule (Moreno v. Galdorisi, supra; Yarish V. Dowling, 70 Mise 2d 467; Lipson v. Gerwirtz, 70 Mise 2d 599),. Deeves v. Fabric Fire Hose Go. (19 A D 2d 735, affd. 14 N Y. 2d 633 [of. Deeves V. Fabric Fire Hose Go., 29 Mise 2d 136]) is distinguishable from the case at bar. In Deeves the Court of Appeals had not yet adopted the third-party beneficiary rule or the Dole rule and had not yet overruled existing law. The fact that the motion for reargument was not made until about 17 months after the third-party complaint was dismissed was not a fatal defect (Moreno v. Galdorisi, supra; CPLR 2221). Hopkins, Acting P. J., Gulotta, Christ, Brennan and Benjamin, JJ., concur.