National Compactor & Technology System, Inc. v. Kohleriter & Spandorf

47 A.D.2d 561, 363 N.Y.S.2d 346, 1975 N.Y. App. Div. LEXIS 8633

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 27, 1975
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Suffolk County, entered February 8,1974, which denied defendant’s motion to amend its answer in Action No. 1 so as to assert a claim over against plaintiff in that action. Order affirmed, with $20 costs and disbursements. While the proposed claim over for indemnity was undoubtedly timely interposed (Museo v. Conte, 22 A D 2d 121; Satta v. City of New York, 272 App. Div. 782), it was, nevertheless, insufficient in point of law and therefore leave was properly denied (Zillman v. Meadowbrook Hosp. Co., 45 A D 2d 267; Grafer v. Marko Beer & Beverages, 36 A D 2d 295, opp. dsmd. 29 N Y 2d 641). Hopkins, Acting P. J., Latham, Cohalan and Brennan, JJ., concur; Shapiro, J., dissents and votes to reverse the order and to grant the motion, with the following memorandum: The proposed claim over sounds in indemnity and is therefore not barred by Statutes of Limitation (Musco v. Conte, 22 A D 2d 121). Respondent’s reliance upon such cases as Grafer v. Marko Beer & Beverages (36 A D 2d 295, opp. dsmd. 29 N Y 2d 641) and Beckerman v. Walter J. Munro, Inc. (25 A D 2d 448) cannot be determined on the conflicting statements in the papers. In view of the liberal policy favoring amendments of pleadings (CPLR 3025, subd. [b]) the motion should have been granted.