Opinion
April 9, 1979
Appeal by defendant third-party plaintiff from an order of the Supreme Court, Kings County, dated December 29, 1977, which granted a motion to dismiss the third-party complaint. Order reversed with $50 costs and disbursements, and motion denied. Successive tort-feasors may not seek apportionment of damages from prior tort-feasors except in those situations where the prior tort-feasor's negligence had made the successor's negligence more likely (Zillman v. Meadowbrook Hosp. Co., 45 A.D.2d 267). On the record presented to us, it is impossible to determine if such an exception applies. Moreover, at this stage of the litigation, with discovery still incomplete, it is unlikely that sufficient facts could be alleged. Thus the determination of this motion was premature. Lazer, J.P., Rabin, Gulotta and Cohalan, JJ., concur.