Summary
In McCabe v. Queensboro Farm Products, Inc., 15 A.D.2d 553, 223 N.Y.S.2d 21 (2d Dept. 1961), aff'd, 11 N.Y.2d 963, 229 N.Y.S.2d 11, 183 N.E.2d 326 (1962), it was held that if, when the third party action is brought by defendant, plaintiff would have been barred by the statute of limitation from commencing an independent action against the third party defendant, plaintiff is barred from asserting a cause of action through amendment against the third (and fourth) party defendant(s).
Summary of this case from Joseph v. Syrian Arab AirlinesOpinion
December 20, 1961
In an action to recover damages for personal injuries, defendant Banner Roofing Co., Inc., which is also a third-party defendant, appeals as defendant in the main action from an order of the Supreme Court, Kings County, dated August 9, 1961, denying its motion for summary judgment dismissing plaintiff's amended complaint as to it. Order reversed, with $10 costs and disbursements; motion of defendant Banner Roofing Co., Inc., for summary judgment dismissing the amended complaint as to it, granted; and amended complaint in the main action dismissed as to defendant Banner. The amended complaint indicates that the injuries complained of were received on January 23, 1957. This action was commenced on or about November 22, 1957, only against Queensboro Farm Products, Inc., and against Sam Gelfand, individually and doing business as Eagle Roofing Sheet Metal Works. Thereafter, and on July 5, 1960, Gelfand as third-party plaintiff, served upon Banner a third-party complaint. Banner's motion to dismiss this third-party complaint was granted and, on a prior appeal from the order dismissing such complaint ( 13 A.D.2d 674), this court modified that order to permit the service of an amended third-party complaint. Gelfand, on June 7, 1961, served an amended third-party complaint on Banner. Then, on June 16, 1961, plaintiff served an amended complaint on third-party defendant Banner, joining him as a codefendant in the main action. Banner as such codefendant served its answer, pleading the Statute of Limitations, and moved for summary judgment dismissing the amended complaint as to it. In our opinion the amended complaint alleges a cause of action based solely upon negligence, which is governed by the three-year period of limitations (Civ. Prac. Act, § 49, subd. 6). For negligently causing his injuries on January 23, 1957, plaintiff did not assert any claim against Banner until June 16, 1961, more than four years after the accrual thereof (Civ. Prac. Act, § 11). Subdivision 3 of section 193-a of the Civil Practice Act neither bars a defendant from asserting the Statute of Limitations as a defense, nor serves to extend the time in which a party may assert a cause of action ( Spen Co. v. Ocean Box Corp., 16 Misc.2d 436; Twelfth Annual Report of N.Y. Judicial Council, 1946, p. 192 et seq.). Although the amended complaint alleges that Banner and Gelfand are joint venturers, the cause of action against Banner may not be deemed to have been commenced as of the service of the summons and complaint on defendant Gelfand on November 22, 1957, since at that time Banner had not been named as a codefendant in the main action (Civ. Prac. Act, § 16; Gray v. Vought Co., 216 App. Div. 230). Beldock, Acting P.J., Kleinfeld, Christ, Pette and Brennan, JJ., concur.