Trybus v. Nipark Realty Corp.
| Decision Date | 13 June 1966 |
| Citation | 271 N.Y.S.2d 5,26 A.D.2d 563 |
| Parties | John TRYBUS, Respondent, v. NIPARK REALTY CORP. and Dwelling Managers, Inc., Defendants and Third-Party Plaintiffs-Respondents; Bernard Gold, Third-Party Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Before BELDOCK, P.J., and UGHETTA, CHRIST, BRENNAN and HOPKINS, JJ.
MEMORANDUM BY THE COURT.
In negligence actions consolidated for trial, to recover damages for injury to property and person, the third-party defendant appeals, as limited by his reply brief, (1) from so much of an order of the Supreme Court, Queens County, entered August 19, 1965, as granted leave to plaintiff to amend his complaint and to serve appellant as an additional defendant; and (2) from so much of an order of said court, entered November 30, 1965 as, upon reargument, adhered to the court's original decision with respect to such amendment.
Order of November 30, 1965 reversed insofar as appealed from, with $10 costs and disbursements to appellant against plaintiff, and plaintiff's motion to amend his complaint and to serve appellant as an additional defendant denied, without costs.
Appeal from order of August 19, 1965, dismissed insofar as appealed from, without costs. That order was superseded by the later order made on reargument.
In these negligence actions, the original defendants served third-party complaints upon appellant within three years after the happening of the accident; and appellant answered those complaints as well as plaintiff's complaint. Thereafter, following the expiration of the three-year Statute of Limitations (CPLR 214), plaintiff made the instant motion for leave to amend his complaint and to serve appellant as an additional defendant. In our opinion, plaintiff was in effect seeking to state a new cause of action against appellant, which was barred by the Statute of Limitations (cf. McCabe v. Queensboro Farm Products, 15 A.D.2d 553, 223 N.Y.S.2d 21; Horan v. Pope & Talbot, D.C., 119 F.Supp. 711; Hankinson v. Pennsylvania Railroad Company, D.C., 160 F.Supp. 709).
We are also of the opinion that the claim sought to be asserted in the proposed amended complaint did not relate back to the date of service of the original complaint, pursuant to CPLR 203, subdivision (e), since the original pleading did not give notice to appellant 'of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading'. Since the Statute of Limitations is a good defense to the proposed amended complaint, no useful purpose would be served in permitting the amendment (cf. Lewis v. Wilson & Co., 275 App.Div. 9, 12, 87 N.Y.S.2d 372, 375.)
HOPKINS, J., concurs in the dismissal of the appeal from the order entered August 19, 1965, but dissents from the reversal as to the order entered November 30,...
To continue reading
Request your trial
-
Liebman v. Westchester County
...of limitations problems (CPLR 203(b); Prudential Ins. Co. v. Stone,270 N.Y. 154, 200 N.E. 679; CPLR 203(e); Trybus v. Nipark Realty Corp., 26 A.D.2d 563, 271 N.Y.S.2d 5) and challenges against jurors (CPLR 4109; 4 Weinstein-Korn-Miller, N.Y.Civ.Prac., 4109.05). That some of the aforemention......
-
Lancaster Silo & Block Co. v. Northern Propane Gas Co.
...2d, N.Y.Prac., § 70:453; Siegel, N.Y.Prac., § 448; cf. Knorr v. City of Albany, 58 A.D.2d 904, 396 N.Y.S.2d 507; Trybus v. Nipark Realty Corp., 26 A.D.2d 563, 271 N.Y.S.2d 5; see also, McLaughlin, Practice Commentary, 7B McKinney's Consol. Stat., C:302:11, p. At the close of the proof, the ......
-
Duffy v. Horton Memorial Hosp.
...the same approach as the Third Department (Allstate Ins. Co. v. Emsco Homes, 93 A.D.2d 874, 461 N.Y.S.2d 429; Trybus v. Nipark Realty Corp., 26 A.D.2d 563, 271 N.Y.S.2d 5; see also, Brock v. Bua, 83 A.D.2d 61, 65, n, 443 N.Y.S.2d 407), but recently attempted to distinguish the earlier cases......
-
Brock v. Bua
...in an amended pleading to relate back to the date of claim interposition against the original defendant (Trybus v. Nipark Realty Corp., 26 A.D.2d 563, 564, 271 N.Y.S.2d 5; cf. Capellino Abattoir, Inc. v. Lieberman, 70 A.D.2d 713, 714, 416 N.Y.S.2d 436) The CPLR contains another relation bac......