Rivkind v. Fried

13 Misc. 2d 943, 159 N.Y.S.2d 861, 1957 N.Y. Misc. LEXIS 3485

Opinion

Matthew M. Levy, J.

This is a motion by the third-party defendants to modify, as to certain specified items therein contained, a notice served by the third-party plaintiff to examine the movants before trial. While the notice to examine was served upon the plaintiff, it does not appear that service of this notice of motion to modify was made upon him.

Under section 193-a of the Civil Practice Act, the third-party defendants became parties to the action not only as to the claim asserted against them by the third-party plaintiff, but also in some respects as to the original cause of action asserted by the plaintiff against the third-party plaintiff in the latter’s status as a defendant-in-chief. Accordingly, the plaintiff is entitled to notice of the third-party defendants’ motion to vacate the third-party plaintiff’s notice of examination.

The motion is denied without prejudice, and with leave to renew upon proof of service of the motion papers upon all of the parties who have appeared in the action.