Russell v. City of Troy

76 A.D.2d 973, 429 N.Y.S.2d 57, 1980 N.Y. App. Div. LEXIS 12093

Opinion

Appeal from an order of the County Court of Rensselaer County, entered December 19, 1978, which dismissed the third-party complaint. Inasmuch as the appellant attempted to serve the third-party complaint on persons already parties to the action, the dismissal of such complaint was required by CPLR 1007 as urged by the third-party defendants. However, in response to the motion for a dismissal, the counsel for the appellant urged that the third-party complaint be treated as a counterclaim for indemnification and thus prevent a multiplicity of actions. The County Court appears to have considered that possibility, but such an amendment of the answer could only have been by leave of court after the note of issue had been filed. The facts in issue upon the allegations of the complaint as to causation and the indemnification claim of the appellant are substantially the same and, accordingly, leave to amend the answer should have been granted to the appellant upon its response to the third-party defendants’ motion. Order modified, on the law, by inserting a provision granting leave to the defendant to serve an amended answer adding a counterclaim against the plaintiffs for apportionment of damages, and, as so modified, affirmed, without costs. Mahoney, P. J., Greenblott, Main, Mikoll and Herlihy, JJ., concur.