Sheridan v. City of New York

• Decision Date: 28 March 1967
• Docket Number: Nos. 2906,s. 2906
• Citation: 278 N.Y.S.2d 456,27 A.D.2d 833
• Parties: Christopher J. SHERIDAN, Administrator of the Estate of Sarah T. Sheridan, Deceased, Plaintiff, v. The CITY OF NEW YORK, Marsh & McLennan, Inc., et al., Defendants. MARSH & McLENNAN, INC., Third-Party Plaintiff-Respondent, v. NEW YORK TELEPHONE COMPANY, Third-Party Defendant-Appellant. And Three Other Actions: Index/1965, 8959/1966, 5940/1964. Supreme Court, Appellate Division, First Department
• Court: New York Supreme Court — Appellate Division

Page 456

278 N.Y.S.2d 456

27 A.D.2d 833

Christopher J. SHERIDAN, Administrator of the Estate of Sarah T. Sheridan, Deceased, Plaintiff, v. The CITY OF NEW YORK, Marsh & McLennan, Inc., et al., Defendants.

MARSH & McLENNAN, INC., Third-Party Plaintiff-Respondent, v. NEW YORK TELEPHONE COMPANY, Third-Party Defendant-Appellant.

And Three Other Actions: Index Nos. 2906/1965, 8959/1966, 5940/1964.

Supreme Court, Appellate Division, First Department.

March 28, 1967.

V. L. Leibell, Jr., New York City, for third-party plaintiff-respondent.

M. Kleinbard, Rye, for third-party plaintiff-respondent.

Before BOTEIN, P.J., and STEVENS, EAGER, CAPOZZOLI, and McNALLY, JJ.

PER CURIAM.

Order entered on October 31, 1966, in the several actions denying motion of third-party defendant to dismiss third-party complaints, unanimously affirmed, without costs and disbursements and without prejudice to a renewal of the motion on substantial completion of pretrial proceedings. The courts should be 'reluctant to dismiss third-party complaints at the pleading stage, particularly in cases involving the 'passive' 'active' dichotomy. A claim over 'charging the third person with active negligence will be allowed if the original complaint can reasonably be interpreted as including an allegation of passive negligence on the part of the defendant.' At the pleading stage, the 'pleader (prime plaintiff) is hardly concerned with the problem among the defendants, inter se, and no effort is made to categorize the allegations to assist in the solution of the problem of liability among them.' But even if plaintiff's pleadings are fairly clear, the ease of amendment on trial may mean that recovery will be allowed on a slightly different theory. See CPLR 3025(c).' (2 Weinstein-Korn-Miller, New York Civ.Prac., 1010.02.) In view of the fact that the allegations of the plaintiffs' complaints here are very general and the cause of the accident is not spelled out, it may not be said with certainty that a recovery, if had by the plaintiffs against the third-party plaintiff, will be based upon its 'active' rather than 'passive' negligence. It may very well be that, as the case develops within the scope of the pleadings, a right of recovery over will depend upon the resolving of issues by a trier of the facts.

Order filed.