Chambland v. Brewer

• Decision Date: 19 July 1966
• Parties: Rosa M. CHAMBLAND, Plaintiff, v. Seymour S. BREWER, Lisamar Realty Corp., People of the State of New York and Blenwood Builders, Inc., Defendants.
• Court: New York Supreme Court

Page 903

272 N.Y.S.2d 903

51 Misc.2d 231

Rosa M. CHAMBLAND, Plaintiff, v. Seymour S. BREWER, Lisamar Realty Corp., People of the State

of New York and Blenwood Builders, Inc., Defendants.

Supreme Court, Special Term, Queens County, Part I.

July 19, 1966.

Michael Goldberg, Jamaica, for plaintiff.

James L. R. Costello, New York City, for defendant Seymour S. Brewer.

I. Louis Winokur, Jamaica, for defendants Lisamar Realty Corp. and Blenwood Builders, Inc.

Louis J. Lefkowitz, Atty. Gen., New York City, for People of State of New York.

MEMORANDUM

LESTER HOLTZMAN, Justice.

Defendant Seymour S. Brewer moves (1) to dismiss plaintiff's cross complaint on the grounds that (a) it is improper for plaintiff to interpose a cross claim against the movant in a reply to a counterclaim asserted by the movant and (b) the cross claim fails to state a cause of action; (2) to require plaintiff 'to make more definite statements of her claim, on grounds that the allegations in the Complaint are so vague, ambiguous and inconsistent'; and (3) to strike from the complaint scandalous and prejudicial matter.

In this action plaintiff seeks to be declared owner of an undivided half interest in certain premises acquired by defendant Brewer and allegedly resold by him in violation of plaintiff's interests to defendant Lisamar Realty Corp. (hereafter: Lisamar). Defendant Brewer served an answer containing counterclaims against the plaintiff. Defendants Lisamar and Blenwood Builders, Inc. (hereinafter: Blenwood) also served an answer which contained counterclaims against plaintiff in which these defendants seek recovery against plaintiff for plaintiff's allegedly fraudulent filing of a lis pendens on property allegedly owned by Lisamar. In plaintiff's reply to defendant Brewer's counterclaim plaintiff alleges a 'cross-complaint' against defendant Brewer in which she seeks indemnity from that defendant for any recovery obtained by defendants Lisamar and Blenwood on their counterclaim against the plaintiff.

The question presented on the first branch of defendant's motion is whether, under the CPLR, a plaintiff may assert a cross claim against a defendant in her reply to a counterclaim asserted by that defendant.

Under the prior law it was proper for such a cross claim to be asserted by the plaintiff. In Paretta v. White Acres Realty Corp., 190 Misc. 649, at page 651; 76 N.Y.S.2d 69, at page 71, the court stated:

'Section 264 of the Civil Practice Act permits a party, who claims that any other party to the action may be liable to him for all or part of the claim asserted against him in the action, to have his ultimate rights determined. The purpose of this section is to avoid multiplicity of suits and to settle in one action all the rights of the various parties arising out of the same transaction rather than to relegate them to separate actions to be commenced after judgment. Patterson v. City of New York, 185 Misc. 610, 57 N.Y.S.2d 427. The object of Section 45 of the Lien Law is similar. Mellen v. Athens Hotel Co., 149 App.Div. 534, 133 N.Y.S. 1079. Formerly section 264 of the Civil Practice Act limited this right to a Defendant who demanded it in his Answer against a Co-defendant. Since the amendment of that section, however, Any party may cross-claim against Any other party by demanding such relief in his Pleading. L.1946, chap. 971, effective Sept. 1, 1946.'

The present section governing the interposition of cross claims (CPLR 3019(b)) states:

'Subject of cross-claims. A cross-claim may be any cause of action in favor Of one or more defendants or a person whom a defendant represents against one or more defendants, a person whom a defendant represents or a defendant and other persons alleged to be liable. A cross-claim may include a claim that the party against whom it is asserted...