Owens v. Palm Tree Nursing Home, Inc.
| Decision Date | 22 December 1975 |
| Citation | 376 N.Y.S.2d 946,50 A.D.2d 865 |
| Parties | Walter OWENS et al., Respondents, v. PALM TREE NURSING HOME, INC., et al., Defendants, and the Patent Scaffolding Co., Inc., Appellant. (and a third-party action) |
| Court | New York Supreme Court — Appellate Division |
Townley, Updike, Carter & Rodgers, New York City (John Paul Reiner and Richard J. Codding, New York City, of counsel), for appellant.
Lawrence R. Wild, Brooklyn (Judith Levy and Alan Leonard Levy, New York City, of counsel), for respondents.
Before RABIN, Acting P.J., and LATHAM, COHALAN, MARGETT and BRENNAN, JJ.
MEMORANDUM BY THE COURT.
In a negligence action to recover damages for personal injuries, etc., defendant Patent Scaffolding Co., Inc. appeals from an order of the Supreme Court, Kings County, dated September 11, 1974, which, Inter alia, granted plaintiffs' motion to amend the complaint.
Order affirmed, with $50 costs and disbursements to plaintiffs against appellant. Defendants' time to answer the amended complaint is extended until 20 days after entry of the order to be made hereon.
In this personal injury action, plaintiffs moved to amend the complaint to add causes of action for breach of implied and express warranties and for strict liability. The original complaint, served in October, 1969, alleged negligence only. Prior to the making of the motion, a second action was commenced on June 27, 1973 against this appellant only, alleging the same facts as in the instant action, but seeking relief on the grounds of breach of express and implied warranties. Appellant moved to dismiss the complaint in the second action on the ground that the four-year limitation period specified in section 2--725 of the Uniform Commercial Code had run. Special Term granted the motion (Owens v. Patent Scaffolding Co. Div. of Harsco, 77 Misc.2d 992, 354 N.Y.S.2d 778) and dismissed the complaint 'with prejudice'. (By a separate decision we are reversing the order made thereon (50 A.D.2d 866, 376 N.Y.S.2d 948, decided herewith).)
In the instant action Special Term granted plaintiffs' above-mentioned motion and we affirm. CPLR 203 (subd. (e)) states that a claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the occurrences provable under the amended pleading. The original complaint herein does give such notice.
Appellant nevertheless contends that...
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