McCabe v. Queensboro Farm Products, Inc.
| Decision Date | 20 December 1961 |
| Citation | 223 N.Y.S.2d 21,15 A.D.2d 553 |
| Parties | Bernard McCABE, Plaintiff-Respondent, v. QUEENSBORO FARM PRODUCTS, INC., Sam Gelfand, individually and doing business under the name of Eagle Roofing & Sheet Metal Works, Defendants, and Banner Roofing Co., Inc., Defendant-Appellant. Sam GELFAND, individually and d/b/a Eagle Roofing & Sheet Metal Works, third-party Plaintiff, v. BANNER, ROOFING CO., Inc., third-party Defendant. |
| Court | New York Supreme Court — Appellate Division |
Martin A. Crean, New York City, for appellant; John M. Cunneen, New York City, of counsel.
Jerome Edelman, Brooklyn, for respondent; Bernard Meyerson, Brooklyn, of counsel.
Before BELDOCK, Acting P. J., and KLEINFELD, CHRIST, PETTE and BRENNAN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, defendant Banner Roofing Co., Inc., which is also a third-party defendant, appeals as defendant in the main action from an order of the Supreme Court, Kings County, dated August 9, 1961, denying its motion for summary judgment dismissing plaintiff's amended complaint as to it.
Order reversed, with $10 costs and disbursements; motion of defendant Banner Roofing Co., Inc., for summary judgment dismissing the amended complaint as to it, granted; and amended complaint in the main action dismissed as to defendant Banner.
The amended complaint indicates that the injuries complained of were received on January 23, 1957. This action was commenced on or about November 22, 1957, only against Queensboro Farm Products, Inc., and against Sam Gelfand, individually and doing business as Eagle Roofing & Sheet Metal Works.
Thereafter, and on July 5, 1960, Gelfand as third-party plaintiff, served upon Banner a third-party complaint. Banner's motion to dismiss this third-party complaint was granted and, on a prior appeal from the order dismissing such complaint (13 A.D.2d 674, 213 N.Y.S.2d 456), this court modified that order to permit the service of an amended third-party complaint.
Gelfand, on June 7, 1961, served an amended third-party complaint on Banner. Then, on June 16, 1961, plaintiff served an amended complaint on third-party defendant Banner, joining him as a codefendant in the main action. Banner as such codefendant served its answer, pleading the Statute of Limitations, and moved for summary judgment dismissing the amended complaint as to it.
In our opinion the amended complaint alleges a cause of action based solely upon negligence, which is...
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