Opinion
May 11, 1971
Order, Supreme Court, New York County, entered May 22, 1970, denying third-party defendant-appellant's motion to dismiss the third-party complaint reversed on the law, the motion granted, the third-party complaint dismissed, and the third-party action severed as to third-party defendant Eureka. Appellant shall recover of respondent $50 costs and disbursements of this appeal. This action was originally brought by the plaintiff against 132 East 35th Street Corp. and the third-party plaintiff. A reading of plaintiff's complaint reveals that it alleges active participating negligence on the part of both defendants. The complaint alleges that both defendants failed to perform the work in a safe, proper and competent manner; failed to provide plaintiff with a safe place to work, in violation of the applicable statute; caused plaintiff to fall in a hole because of the failure to protect or cover a hole into which plaintiff fell; failed to warn plaintiff and created a trap and dangerous condition. These are allegations of violation of a nondelegable duty and if proved would constitute third-party plaintiff an active tort-feasor. Accordingly, the third-party complaint should be dismissed. (See Bush Term. Bldgs. Co. v. Luckenbach S.S. Co., 9 N.Y.2d 426, 430; Coughlin v. Sanford Nallitt Co., 34 A.D.2d 757; Coffey v. Flower City Carting Excavating Co., 2 A.D.2d 191, affd. 2 N.Y.2d 898.)
I would affirm the order denying the motion to dismiss the third-party complaint. There is no factual showing in support of the motion to dismiss and the motion is to be determined on the basis of the pleadings. At the pleading stage, the plaintiff is hardly concerned with the problem of liability among defendants or whether or not a defendant may have a right of recovery over against a third party and a plaintiff makes no effort to prepare his complaint in a manner to assist in the solution of the problem of a possible liability over. (See 2 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 1010.02; Sheridan v. City of New York, 27 A.D.2d 833.) Consequently, at the pleading stage, "it is generally the unusual case in which it can be definitely stated that liability can be predicated on active negligence solely. This has given rise to the rule that if on any reasonable construction of the complaint recovery can be had on the ground of passive negligence, the determination should await the trial" ( Torres v. Transamerican Frgt. Line, 34 A.D.2d 538; see, also, 2 Weinstein-Korn-Miller, N Y Civ. Prac., par. 1010.02). The test at this point "is whether there is any possibility of liability over against [the] third party." ( Phoenix Assur. Co. of N.Y. v. Hunt Agency, 19 A.D.2d 882; see, also, Braun v. City of New York, 17 A.D.2d 264, 268.) Here, the allegations of plaintiff's complaint are very general and it does not appear whether such allegations have been amplified in any way by a bill of particulars. Furthermore, "the ease of amendment on trial may mean that recovery will be allowed on a slightly different theory" (see 2 Weinstein-Korn-Miller, N.Y. Civ. Prac., par 1010.02; Sheridan v. City of New York, supra). "It may very well be that, as the case develops within the scope of the pleadings, a right of recovery over will depend upon resolving of issues by a trier of facts" ( Sheridan v. City of New York, supra). Accordingly, in my opinion, it is improper to dismiss the third-party complaint at this time. The third-party defendant would seem to have a "more fruitful remedy" with a proper development of the facts on a motion for summary judgment, or on the trial. (See Braun v. City of New York, supra, p. 268.)