Opinion
May 11, 1967
Order and judgment dismissing the third-party complaint, affirmed, with $50 costs and disbursements to the third-party defendant-respondent. We are unanimous in concluding the third-party complaint was properly dismissed. The majority of the court is of the opinion that no useful purpose will be served in granting leave to amend said pleading. The primary complaint is in negligence. A third-party complaint may be "allowed if the original complaint can reasonably be interpreted as including an allegation of passive negligence on the part of the defendant". ( Putvin v. Buffalo Elec. Co., 5 N.Y.2d 447, 455.) Plaintiff's complaint herein alleges defendant to have been negligent in designing and supervising the installation of plaintiff's electric typewriter and desk and electrical extension; that the said installation created a condition dangerous to plaintiff, which she corrected by relocating the typewriter, which defendant, over plaintiff's protest, nullified by restoring the typewriter to its original dangerous location and position. The affirmative acts of negligence alleged in the primary complaint against defendant preclude its cross complaint for indemnity. ( Berg v. Town of Huntington, 7 N.Y.2d 871.) Proof of the allegations of the third-party complaint is admissible under defendant's denial of the allegations of negligence. If established to the satisfaction of the trier of the facts, the defendant will prevail, since plaintiff will have failed to sustain her allegations of negligence. In such case, there will be no basis for a third-party claim. ( Coffey v. Flower City Carting Excavating Co., 2 N.Y.2d 898.) The allegation in the primary complaint that defendant failed "to provide a safe area for employees, including plaintiff" is not an allegation of passive negligence on the part of defendant and third-party plaintiff, since plaintiff was not in the employ of the defendant and third-party plaintiff. The allegation states the effect of the alleged active negligence of defendant was to create an unsafe area; it is not an affirmation of the nondelegable duty of the third-party plaintiff to maintain a safe place of employment. ( Putvin v. Buffalo Elec. Co., supra, p. 457.)
I dissent and would modify the order of Special Term and the judgment entered thereon to the extent of granting leave to replead, and otherwise affirm. The court below acted in a technically correct fashion when it dismissed the third-party complaint for the reason that it contained allegations disavowing liability ( Coffey v. Flower City Carting Excavating Co., 2 A.D.2d 191, 192, affd. 2 N.Y.2d 898; Beckerman v. Walter J. Munro, Inc., 25 A.D.2d 448, 449). Nevertheless, it should have permitted third-party plaintiff to replead, as was requested, setting forth explicit allegations that would warrant a finding of passive negligence on its part. Such facts were slenderly touched upon in the third-party complaint dismissed, but in view of the disavowal of all liability, were not available. The opposing affidavits of the prime defendant and the legal explication of them in the briefs demonstrate that a trier of the facts could hold the prime defendant for passive negligence based on its failure to design properly, supervise and provide a safe place to work. And they would further support a finding of ultimate liability as to the third-party defendant predicated upon its active negligence in creating the conditions which caused plaintiff's injury. Thus, we should grant the request of the prime defendant and permit a repleading. (CPLR 3211, subd [e].) The cross action, resulting from this repleading against the third-party defendant for its active negligence, could be tried simultaneously with the main suit, avoiding multiplicity of actions. And if the prime plaintiff recovers, such a trial would also decide which of the defendants is primarily at fault. ( Crawford v. Blitman Constr. Corp., 1 A.D.2d 398.) This court only recently stated "The courts should be 'reluctant to dismiss third-party complaints at the pleading stage, particularly in cases involving the "passive" "active" dichotomy.'" ( Sheridan v. City of New York, 27 A.D.2d 833.) The soundness of this observation clearly indicates the logic of permitting the third-party plaintiff herein to replead. True it is that by repleading, the appellant may create a dilemma for itself, affecting its credibility, but the extent of this is not determinable before a trial. In any event, the mere possibility of a claim over requires that the primary defendant be allowed to interpose a third-party complaint. ( Crawford v. Blitman Constr. Corp., supra; Tipaldi v. Riverside Mem. Chapel, 273 App. Div. 414, 418-419, affd. 298 N.Y. 686.)