Opinion
November 27, 1973
Order, Supreme Court, New York County, entered on April 5, 1973, denying the third-party defendant's motion to dismiss the third-party complaint, unanimously reversed, on the law, and the motion granted, without costs and without disbursements. Appeal from order, Supreme Court, New York County, entered on February 23, 1973, denying third-party defendant's motion for reargument, unanimously dismissed, without costs and without disbursements. The original third-party complaint was dismissed by judgment entered August 26, 1971, because of the then existing active-passive doctrine. After the decision in Dole v. Dow Chem. Co. ( 30 N.Y.2d 143) the third-party plaintiff, without leave of the court, served a second complaint based upon the identical facts initially pleaded. Since no appeal was taken from the judgment dismissing the original complaint, and since the time to appeal from that judgment has expired, such judgment must be considered as a final determination on the merits with respect to the rights of these parties, and the subsequent change in the law may not form a basis permitting the second complaint to stand. ( Matter of Huie [ Furman], 20 N.Y.2d 568; Deeves v. Fabric Fire Hose Co., 14 N.Y.2d 633; Spindell v. Brooklyn Jewish Hosp., 35 A.D.2d 962, affd. 29 N.Y.2d 888; Glomboski v. Baltimore Ohio R.R., 72 Misc.2d 552.)
Concur — Nunez, J.P., Murphy, Lane, Tilzer and Capozzoli, JJ.