Yarish v. Dowling

• Decision Date: 12 June 1972
• Parties: Lyda YARISH and Vincent Yarish v. John W. DOWLING and The Western Union Telegraph Company.
• Court: New York Supreme Court

Page 508

333 N.Y.S.2d 508

70 Misc.2d 467

Lyda YARISH and Vincent Yarish v. John W. DOWLING and The Western Union Telegraph Company.

Supreme Court, Special Term, Queens County Part I.

June 12, 1972.

Theodore T. Weiser, Lynbrook, for plaintiffs Yarish.

John M. Evans and Harry J. Burke, New York City, for defendant and third-party plaintiff, The Western Union Telegraph Co.

Raymond J. MacDonnell, New York City, for defendant Dowling.

Benjamin Purvin, Lake Success, for defendant Yarish.

Bennett Oppenheimer, Far Rockaway, for plaintiff Dowling.

MEMORANDUM

FREDERIC E. HAMMER, Justice.

In this action for damages for personal injury resulting from negligence, Vincent Yarish, plaintiff-third-party defendant, moves to dismiss the third party summons and complaint for failure to state a cause of action.

Plaintiff, Vincent Yarish, and plaintiff, Lyda Yarish, his wife, a passenger in his automobile, commenced the instant cause of action for damages for personal injuries sustained in an intersection collision with an automobile owned and operated by defendant, John Dowling, in the course of his employment with defendant, Western Union Telegraph Company (hereinafter called Western Union). Subsequent to joinder of issue and shortly after the Court of Appeals decision in Dole v. Dow Chemical Company, 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 defendant, Western Union, served a third party summons and complaint on Vincent Yarish, alleging therein a cause of action for indemnification resulting from the active and primary negligence of Yarish.

Before considering the merits of the instant application the Court will dispose of the preliminary issue raised by Western Union's use of a third party complaint to assert a claim against Vincent Yarish, a party plaintiff in the original complaint. Western Union's claim against Yarish, if viable, is actually a counterclaim which should have been pleaded as part of the defendant's answer after an appropriate motion to amend or supplement. (CPLR 3025.) However, since all of the parties are before the Court and since the essential differences between serving a counterclaim and impleading a party 'are not of great substance', the Court deems defendant's third party complaint to be a supplemental answer (Bollinger v. Borden, 30 A.D.2d 607, 290 N.Y.S.2d 403) and disregards the irregularity of the service without leave especially since there is no showing of prejudice to any substantial right of the plaintiff. (Association for Preservation of Freedom of Choice Inc. v. Shapiro, 14 A.D.2d 800, 220 N.Y.S.2d 696.)

Addressing ourself to the merits, there is no question that prior to the Court of Appeals decision in Dole v. Dow Chemical Co. (supra), the supplemental answer of the defendant, a vicariously active tortfeasor, would not have stated a cause of action against Vincent Yarish (see discussion Vol. 5--A Warren's Negligence, chap. 8, § 4, p. 394, et seq.). In Dole the Court eliminated the theory of active-passive negligence with respect to the right of a defendant charged solely with active negligence to implead another actively negligent party based on the concept of comparative negligence. In reaching its determination the Court reexamined.

'* * * the basis fairness of the uncertain and largely unpredictable nature of the measure of redress that has been allowed by indemnity in favor of a party found negligent...