Pimm v. Utilities Contractors, Inc.

Order unanimously reversed and motion denied, all without costs. Memorandum: We said in Donnelly v. Rochester Gas & Elec. Corp. (21 A D 2d 740): “It is not clear that the plaintiff cannot recover from the defendant Rochester Gas and Electric Corporation on the basis of passive negligence. That being so, the second cause of action in the third-party complaint was improperly dismissed as insufficient in law. This is particularly so when the cause of action which was dismissed is viewed in the light of 3013 and subdivision (a) of 3017 of the Civil Practice Law and Rules. (See, also, 3 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3013.03; also Foley v. D’Agostino, 21 A D 2d 60.)” The same legal principles and reasoning apply to the present ease. (Appeal by third party plaintiff from order of Monroe Special Term, granting motion of third-party defendant to dismiss third-party complaint.) Present — Williams, P. J., Bastow, Goldman, Del Vecehio and Marsh, JJ. [50 Misc 2d 1092.]