Williams v. Twin Ponds Golf Associates, Inc.

Appellate Division of the Supreme Court of New York

Williams v. Twin Ponds Golf Associates, Inc.

23 A.D.2d 956, 260 N.Y.S.2d 225, 1965 N.Y. App. Div. LEXIS 4211

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 13, 1965

StatusPublished

Cited by1 cases

This text of 23 A.D.2d 956 (Williams v. Twin Ponds Golf Associates, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Williams v. Twin Ponds Golf Associates, Inc., 23 A.D.2d 956, 260 N.Y.S.2d 225, 1965 N.Y. App. Div. LEXIS 4211 (N.Y. Ct. App. 1965).

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Opinion

Order unanimously reversed, with costs, and motion denied, with $10 costs. Memorandum: Under the allegations of paragraphs 9, 10, lOg, 11, and lie of the complaint, which have not [957]*957been limited by a bill of particulars, proof might be received to establish passive negligence of appellant and active negligence of respondent. There is, therefore, a possibility that the trial of the main action will establish that an action over exists. In such case the cross claim should not be dismissed (3 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3019.22). “ Since the codefendant is already a party, the court ought to be even more reluctant to dismiss the cross-complaint than it would be to dismiss a third-party action.” (2 Weinstein-Korn-Miller, N. Y. Civ Prac., par. 1007.04.) The determination of the question should therefore await the resolution of the factual issues on the trial. (See Brady v. Weiss & Sons, 6 A D 2d 241; Braun v. City of New York, 17 A D 2d 264, 267.) (Appeal from order of Oneida Special Term granting the motion of defendant Danella to dismiss the cross complaint of defendant, Twin Ponds Golf.) Present — Williams, P. J., Bastow, Henry, Noonan and Del Vecchio, JJ.

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Order unanimously reversed, with costs, and motion denied, with $10 costs. Memorandum: Under the allegations of paragraphs 9, 10, lOg, 11, and lie of the complaint, which have not [957]*957been limited by a bill of particulars, proof might be received to establish passive negligence of appellant and active negligence of respondent. There is, therefore, a possibility that the trial of the main action will establish that an action over exists. In such case the cross claim should not be dismissed (3 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3019.22). “ Since the codefendant is already a party, the court ought to be even more reluctant to dismiss the cross-complaint than it would be to dismiss a third-party action.” (2 Weinstein-Korn-Miller, N. Y. Civ Prac., par. 1007.04.) The determination of the question should therefore await the resolution of the factual issues on the trial. (See Brady v. Weiss & Sons, 6 A D 2d 241; Braun v. City of New York, 17 A D 2d 264, 267.) (Appeal from order of Oneida Special Term granting the motion of defendant Danella to dismiss the cross complaint of defendant, Twin Ponds Golf.) Present — Williams, P. J., Bastow, Henry, Noonan and Del Vecchio, JJ.

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Bluebook (online)

23 A.D.2d 956, 260 N.Y.S.2d 225, 1965 N.Y. App. Div. LEXIS 4211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-twin-ponds-golf-associates-inc-nyappdiv-1965.

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