Camacho v. New York City Transit Authority
| Decision Date | 30 December 1985 |
| Parties | Luis CAMACHO, Plaintiff, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant Third-Party Plaintiff; The City of New York, Third-Party Defendant. New York City Transit Authority, Fourth-Party Plaintiff-Respondent; New York City Industrial Development Corp., et al., Fourth-Party Defendants; Detecto Scales, Inc., Appellant. |
| Court | New York Supreme Court — Appellate Division |
Giordano & Strauss, New York City (Angelo A. Giordano, of counsel), for appellant.
Paul S. Mirman, P.C., Brooklyn (Jeffrey H. Schwartz, on brief), for fourth-party plaintiff-respondent.
Before LAZER, J.P., and O'CONNOR, WEINSTEIN and NIEHOFF, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, Detecto Scales, Inc. appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Held, J.), entered December 28, 1984, as denied its motion to dismiss plaintiff's amended complaint insofar as it is asserted against it.
Order reversed insofar as appealed from, with costs, motion granted, and complaint dismissed insofar as it asserted against appellant.
After allegedly sustaining serious injuries as a result of being struck by a train operated by defendant New York City Transit Authority (Authority), plaintiff commenced this action against the Authority in September 1981. In July 1983, the Authority commenced a third-party action against the City of New York and in April 1984 the Authority prepared what it denominated a "fourth party" summons and complaint naming the New York City Industrial Development Corp., Rentar Development Corp. and appellant, Detecto Scales, Inc., as "fourth-party defendants". While the New York City Industrial Development Corp. and Rentar Development Corp. were served with this summons and complaint and have answered it, the record is barren of any proof that a "fourth-party" action against appellant was ever commenced. Indeed, appellant's attorney has stated in an affidavit that the Authority's counsel has informed him that no "fourth-party" action against appellant was commenced. Plaintiff has presented no proof to the contrary.
In any event, on or about June 21, 1984, plaintiff amended his complaint without leave of court to name several additional defendants, including appellant. On June 29, 1984, appellant was served with the amended complaint by service upon the Secretary of State. Subsequently, appellant moved to dismiss, claiming that the amended complaint was a nullity because plaintiff failed to obtain the court's permission for the amendment. The motion was denied and this appeal followed. The order should be reversed insofar as appealed from.
CPLR 1003 requires a plaintiff to obtain permission before amending the complaint to include a new party defendant. The failure to obtain such permission before serving such an amended complaint, unless waived, normally requires dismissal of the complaint against the improperly joined party (McDaniel v. Clarkstown Cent. Dist. No. 1, 83 A.D.2d 624, 625, 441 N.Y.S.2d 532; Catanese v. Lipschitz, 44 A.D.2d 579, 353 N.Y.S.2d 250).
CPLR 1009, however, provides an exception to the rule requiring permission of the court to add a new party defendant. That statute, as it existed at the time plaintiff served the amended complaint, provided that within 20 days after the plaintiff was served with a copy of a complaint commencing a third or fourth-party action, the plaintiff could amend the original complaint without leave of court to include a third or fourth-party defendant as a defendant in the main action (CPLR 1009; L.1962, ch. 308, as amended L.1962, ch. 315; Johnson v. Equitable Life Assur. Soc. of U.S., 22 A.D.2d 138, 254 N.Y.S.2d 258, affd. 18 N.Y.2d 933, 277 N.Y.S.2d 136, 223 N.E.2d 562). The section has since been amended to provide that the 20-day period shall commence with the service upon plaintiff of the third or...
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