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

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.