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De Luca v. Itek Corp.

Appellate Division of the Supreme Court of New York, Second Department
Nov 7, 1977
59 A.D.2d 885 (N.Y. App. Div. 1977)

Summary

In De Luca, the court, finding that third-party plaintiff had not pled sufficient facts as required by CPLR § 3013, dismissed the third-party complaint for failure to state a cause of action.

Summary of this case from CANDELARIO v. MTA BUS CO.

Opinion

November 7, 1977


In a negligence action to recover damages for personal injuries, the third-party defendant Butterick Fashion Marketing Co. appeals from an order of the Supreme Court, Kings County, dated April 8, 1977, which denied its motion to dismiss the third-party complaint on the ground that it fails to state a cause of action. Order reversed, with $50 costs and disbursements, and motion to dismiss granted, without prejudice to the service of an amended third-party complaint. Respondent's time to serve an amended third-party complaint is extended until 20 days after service upon it of a copy of the order to be made herein, with notice of entry thereof. The third-party complaint does not set forth the material elements of a cause of action in negligence (see CPLR 3013). What the third-party complaint states, rather, is that if the plaintiff in the main action recovers, then the damages were caused by the negligence of the third-party defendant-appellant; and, in that event, defendant third-party plaintiff-respondent is allegedly entitled to be indemnified by the third-party defendant or there should be an apportionment of responsibility. This in no way indicates what respondent intends to prove respecting how the third-party defendant breached its duty to the plaintiff and was negligent. The third-party complaint fails to state the material elements of a cause of action (see CPLR 3013; Lewis v Village of Deposit, 40 A.D.2d 730, affd 33 N.Y.2d 532; Foley v D'Agostino, 21 A.D.2d 60). Gulotta, P.J., Latham, Damiani and O'Connor, JJ., concur.


Summaries of

De Luca v. Itek Corp.

Appellate Division of the Supreme Court of New York, Second Department
Nov 7, 1977
59 A.D.2d 885 (N.Y. App. Div. 1977)

In De Luca, the court, finding that third-party plaintiff had not pled sufficient facts as required by CPLR § 3013, dismissed the third-party complaint for failure to state a cause of action.

Summary of this case from CANDELARIO v. MTA BUS CO.
Case details for

De Luca v. Itek Corp.

Case Details

Full title:ANTHONY F. DE LUCA, Plaintiff, v. ITEK CORPORATION, Defendant and…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 7, 1977

Citations

59 A.D.2d 885 (N.Y. App. Div. 1977)

Citing Cases

CANDELARIO v. MTA BUS CO.

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