Sosa v. Joyce Beverages, Inc.
| Decision Date | 10 March 1988 |
| Citation | 525 N.Y.S.2d 607,138 A.D.2d 256 |
| Parties | Mario SOSA, Plaintiff-Respondent, v. JOYCE BEVERAGES, INC., et al., Defendants. JOYCE BEVERAGES, INC., et al., Third-Party Plaintiffs-Respondents, v. METRO CONTAINERS, INC., et al., Third-Party Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
C.F. McGuire, New York City, for plaintiffs-respondents.
J. Galvano, Brooklyn, F.B. Mann, Jr., New York City, J. McDermott, Jr., for defendants-appellants.
Before SANDLER, J.P., and CARRO, KASSAL, ELLERIN and SMITH, JJ.
Order, Supreme Court, Bronx County (Irma Vidal Santaella, J.), entered January 29, 1987, granting a motion by the third-party plaintiffs-respondents for reargument of a prior motion in which respondents had sought to amend their third-party complaint to add three additional causes of action, and on reargument granting their motion for leave to amend the third-party complaint, and denying a cross-motion by plaintiff for severance of the third-party action in the event the court granted leave to amend, unanimously modified, on the law, with costs, and the motion to amend the third-party complaint to add three causes of action is denied, and otherwise affirmed.
The main action was commenced on March 21, 1982 by plaintiff to recover damages for personal injuries sustained when a bottle containing a carbonated beverage exploded on February 14, 1980. The action was brought against the respondents Joyce Beverages, Inc. and Seven-Up Bottling Company of New York, alleging that these defendants manufactured and distributed the beverage.
In March, 1984 the respondents served a third-party summons and complaint on the three third-party defendants (appellants), all manufacturers of glass bottles. Seven causes of action for contribution and indemnification were asserted, all predicated on the claim that the glass bottle in question had been improperly designed and manufactured by one of the appellants, which had in turn sold it to the respondents. The seven causes of action for contribution and indemnification embraced claims alleging strict products liability, express warranty, implied warranty, negligence, contractual indemnification, common-law indemnification and contribution.
After each of the third-party defendants answered the third-party complaint, there followed full discovery, including examinations before trial of all parties.
By notice of motion dated October 16, 1985 the respondents moved for leave to amend the third-party complaint, the motion being supported only by an affirmation of a lawyer from the law firm representing the respondents. The motion sought leave to add three causes of action as follows:
1) The proposed eighth cause of action alleged that each third-party defendant "acted in a tortious manner in the operation, management, control, direction and supervision of the manufacture of the subject bottle".
2) The proposed ninth cause of action alleged that each third-party defendant "acted in pursuance of a common plan or design to commit a tortious act in the operation, management, control, direction and supervision of the manufacture of the subject bottle".
3) The proposed tenth cause of action alleged that each third-party defendant "acted in a tortious manner in adhering to a dangerous industry wide safety standard in their management, control, direction and supervision of the subject bottle."
The appellants moved to dismiss on varied grounds, including the claim that no affidavit had been submitted from anyone with knowledge of the facts to support the proposed additional claims. The motion to amend...
To continue reading
Request your trial
-
Sosa v. Joyce Beverages, Inc.
...bottle in question had been improperly designed and manufactured by one of the third-party defendants. In Sosa v. Joyce Beverages, Inc. (138 A.D.2d 256, 258, 525 N.Y.S.2d 607), we held, inter alia, that a proposed amendment seeking to add a cause of action that each third-party defendant "a......