Opinion
November 6, 1967
Appeal by plaintiff, as limited by his briefs, from so much of an order of the Supreme Court, Kings County, dated January 31, 1967, as on reargument adhered to a previous determination denying his motion to strike out the defense of defendant Abraham Straus and the defenses of third-party defendant Grand Waste Paper Corporation based on the Workmen's Compensation Law. Appeal by the defendant third-party plaintiff, as limited by its brief, (1) from so much of an order of said court dated December 20, 1966 as on reargument adhered to a previous determination dismissing its third-party complaint against Grand Waste Paper Corporation and (2) from so much of an order of said court dated January 30, 1967 as on granting its motion to amend said order of December 20, 1966 adhered to the dismissal of said third-party complaint. Appeal from order dated December 20, 1966 dismissed, without costs. That order was superseded by the order dated January 30, 1967. Order dated January 31, 1967 affirmed insofar as appealed from, without costs. Order dated January 30, 1967 reversed insofar as appealed from, without costs; the provision therein adhering to the original determination and order dismissing the third-party complaint against Grand Waste Paper Corporation is struck out; and the motion to dismiss said third-party complaint is denied. In our opinion, the issues, factual and legal, as to whether third-party defendant Murphy was a special or ad hoc employee of Abraham Straus and a coemployee of plaintiff within the meaning of the Workmen's Compensation Law, the applicability of the Workmen's Compensation Law and whether defendant third-party plaintiff Abraham Straus was guilty only of passive negligence should be explored on trial without any of the defenses or pleadings being first stricken (cf. Osborg v. Hoffman, 252 App. Div. 587, affd. 280 N.Y. 523; Matter of De Noyer v. Cavanaugh, 221 N.Y. 273; Ogino v. Black, 278 App. Div. 146, affd. 304 N.Y. 872; Meaney v. Keating, 305 N.Y. 660; McFall v. Compagnie Maritime Belge [ Lloyd Royal] S.A., 304 N.Y. 314, 331; Caulfield v. Elmhurst Contr. Co., 268 App. Div. 661, affd. 294 N.Y. 803; Putvin v. Buffalo Elec. Co., 5 N.Y.2d 447; Mitchell v. A.A. Truck Renting Corp., 9 A.D.2d 682). It was error to grant the motion to dismiss the third-party complaint against Grand Waste Paper Corporation (cf. Mitchell v. A.A. Truck Renting Corp., supra; Castle v. North End Contr. Corp., 21 A.D.2d 8, 11; Pochari v. County of Westchester, 15 A.D.2d 823). Christ, Acting P.J., Brennan, Rabin, Hopkins and Benjamin, JJ., concur.