Johnson v. Equitable Life Ass. of U.S.
| Citation | 18 N.Y.2d 933,277 N.Y.S.2d 136 |
| Parties | , 223 N.E.2d 562 Joanne JOHNSON, as Administratrix, etc., et al., Plaintiffs, and Mary Szczerba, as Administratrix, etc., Respondent, v. EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES et al., Defendants, and Michigan Tool Company, Appellant. EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, Third-Party Plaintiff-Respondent, v. SKIDMORE, OWINGS & MERRILL et al., Third-Party Defendants, and Michigan Tool Company, Third-Party Defendant-Appellant. |
| Decision Date | 01 December 1966 |
| Court | New York Court of Appeals Court of Appeals |
Appeal from Supreme Court, Appellate Division, First Department, 22 A.D.2d 138, 141, 254 N.Y.S.2d 258, 261.
Action was brought to recover damages for wrongful death, and a third-party complaint was filed against foreign corporation. The third-party complaint was served on foreign corporation on February 18, 1964, and the supplemental summons and amended complaint of Mary Szczerba were served on foreign corporation on March 18, 1964, and the foreign corporation contended that the latter service was untimely. CPLR 1007 provides that a copy of a third-party complaint must be served on a plaintiff's attorney as well as on a third-party defendant. CPLR 1009 provides that within 20 days after service of the third-party complaint the plaintiff may amend his complaint without leave of court to assert against the third-party defendant any claim he might have asserted if the third-party defendant had been joined originally as a defendant.
The Supreme Court, Special Term, New York County, Charles A. Loreto, J., 43 Misc.2d 850, 252 N.Y.S.2d 477, entered orders denying the motion of the foreign corporation to dismiss the third-party complaint against it for lack of jurisdiction of the person, and denying a motion made by the foreign corporation as defendant in the main action to vacate the service on it of the supplemental summons and amended complaint of Mary Szczerba and to dismiss the amended complaint.
The Appellate Division, 22 A.D.2d 138, 141, 254 N.Y.S.2d 258, 261, entered an order which unanimously affirmed the orders of the Special Term.
The Appellate Division certified questions: 'Was the order of Special Term denying motion to dismiss the third-party complaint for lack of jurisdiction of the person properly made?' and 'Was the order of Special Term denying the motion to vacate service of the supplemental summons and amended complaint of plaintiff Mary Szczerba and to dismiss the amended complaint properly made?'
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