Hansen v. City of New York
| Decision Date | 09 September 1964 |
| Court | New York Supreme Court |
| Parties | Hjordis HANSEN and Sverre Hansen, Plaintiffs, v. The CITY OF NEW YORK, Walbell Real Estate Corp., and Bay Ridge Rambler, Inc. Defendants. WALBELL REAL ESTATE CORP., and Bay Ridge Rambler, Inc., Third-Party Plaintiffs, v. TEXACO, INC., and the Alvin Co., Third-Party Defendants. |
Robert Goldstein, New York City, for third-party defendant the Alvin co.
Wilson, Spiegelman & Sternin, Brooklyn, for plaintiffs.
Terhune, Gibbons & Mulvehill, New York City, for third-party defendant Texaco, Inc.
Leo A. Larkin, New York City, for defendant City of New York.
Emanuel Morgenbesser, New York City, for defendants-third-party plaintiffs.
Third party plaintiffs, defendants in a negligence action, move for judgment dismissing for insufficiency the affirmative defense of statute of limitations which has been interposed by the third party defendants in their answer to the third party complaint (CRLR Rule 3211[b]). The third party complaint is grounded upon the third party plaintiffs' alleged status as passive tort-feasors and upon the third party defendants' alleged liability as active tort-feasors. Accordingly, it is averred in the third party complaint, if the third party plaintiffs should be held liable for the plaintiffs' damages in the main action, third party plaintiffs seek indemnification therefor from the third party defendants.
The action for indemnity is based upon principles of a quasi contract and is governed by the six-year period of limitations (see Rieger v. Frankstram Realties, Inc., Sup., 68 N.Y.S.2d 243 [n. o. r]; CPLR § 213) as distinguished from the 'action to recover damages for a personal injury.' (CPLR § 214).
Since admittedly the six-year time limitation has not run, the pleading of the statute of limitations as a defense is insufficient as a matter of law and must be dismissed.
An objection has been raised with regards to the timeliness of the instant motion to dismiss the defense. It seems, however, to be the general consensus of opinion that under 'Rule 3211 [of the Civil Practice Law and Rules], a motion challenging the sufficiency of defenses may be made at any time prior to, or even upon the trial. (See Weinstein-Korn-Miller, 'New York Civil Practice,' Vol. 4, § 3211.47, McKinney's Book 7B, 'Civil Practice Law and Rules' Rule 3211, Note, p. 326.)' (Sadif, S.A. v. Burnham & Co., 20 A.D.2d 777, 247...
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...action is premised upon a quasi contractual obligation implied in law. (cf. 28 N.Y.Jur. § 33 generally; Hansen v. City of New York, 43 Misc.2d 1048, 1049, 252 N.Y.S.2d 695, 696). Necessarily, this court must first discern the nature of the third-party action before a decision can be rendere......
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...applicable statute of limitations. Cf. Perry County v. Newark S. & R. Co., 43 Ohio St. 451, 2 N.E. 854 (1885); Hansen v. City of New York, 43 Misc.2d 1048, 252 N.Y.S.2d 695 (1964). Accordingly, we hold that under Ohio law, the six-year statute of limitations applies to an action for indemni......
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...upon a cause of action sounding in indemnity and as such, is governed by the six year statute of limitations (see Hansen v. City of New York, 43 Misc.2d 1048, 252 N.Y.S.2d 695; Rieger v. Frankstram Realties, Sup., 68 N.Y.S.2d 243; CPLR 213(2)). Since the cause of action did not accrue until......
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