Rose v. Thau
| Decision Date | 06 September 1973 |
| Citation | 75 Misc.2d 387,347 N.Y.S.2d 854 |
| Parties | Grant R. ROSE, an Infant, by Raymond P. Rose, his Father, and Raymond P. Rose, Individually, Plaintiffs, v. Samuel THAU, as Administrator of the Estate of Richard Joel Thau, Deceased, Defendant. Grant R. ROSE, an Infant, by Raymond P. Rose, his Father, and Raymond P. Rose, Individually, Plaintiffs, v. Winifred D. LUCY, Defendant. Samuel THAU, as Administrator of the Estate of Richard Joel Thau, Deceased, Defendant and Third-Party Plaintiff, v. Winifred D. LUCY, Third-Party Defendant. |
| Court | New York Supreme Court |
Donovan, Graner, Davidson & Burns, Elmira (D. Bruce Crew, III, Elmira, of counsel), for defendant and third-party plaintiff.
Harpending, Fox, Buck, Gleckner & Danaher, Elmira (Arlington R. Gleckner, Elmira, of counsel), for third-party defendant.
De Filippo Brothers, Elmira, for plaintiffs.
This motion arises out of a personal injury lawsuit tried in Chemung County in May of 1973. In two separate actions plaintiff Rose sued Thau and Lucy. Pursuant to the right of action afforded defendant tort-feasors in Dole v. Dow, 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288, petitioner Thau commenced a third-party action for proportional indemnification against Lucy. All actions were tried jointly. The jury found for plaintiff in both main actions and on the third-party action the damages were apportioned. Judgments were entered for plaintiff in the two main actions and also for the petitioner Thau against respondent Lucy on the third-party claim. Thereafter, Lucy entered a judgment with an award of costs of $150 against Thau. Petitioner Thau now asks that judgment entered by Lucy be vacated on the ground that there was no action pending by Lucy against Thau, no pleadings were served, and there is, therefore, no basis upon which to enter the judgment and to allow costs.
The question presented is whether Thau's judgment was validly entered in the absence of formal pleadings.
In the wake of the confusion created by the new Dole Rule and the procedural uncertainties that have accompanied it, the courts have been liberal in allowing claims without proper pleadings. Cross-claims have been permitted in the absence of any pleadings and the Appellate Division, Second Department has held that in order to avoid prejudice under the Dole Rule courts should, Sua sponte, charge that the jury should determine the proportionate responsibility of each defendant. Stein v. Whitehead, 40 A.D.2d 89, 337 N.Y.S.2d 821. Although the courts have not been quite as liberal with counterclaims, such claims have been allowed as late as eve of trial. Sanchez v. Hertz, 70 Misc.2d 449, 333 N.Y.S.2d 699; Lipson v. Gewirtz, 70 Misc.2d 599, 334 N.Y.S.2d 662; Meade v. Roberts, 71 Misc.2d 120, 335 N.Y.S.2d 349. The rationale behind these decisions has been that it would be unfair to deprive a defendant of the benefit of the Dole Rule (which is...
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