Rapisarda v. Banco

In an action, inter alia, to recover damages for personal injuries sustained by the infant plaintiff as the result of an automobile accident, defendant Banco appeals, and defendants Rowan and Good Humor Corp. cross-appeal, from an order of the Supreme Court, Richmond County, dated January 3, 1978, which granted plaintiffs’ motion to dismiss defendant Banco’s third-party complaint for failure to state a cause of action. Order reversed, on the law, with one bill of $50 costs and disbursements, and motion denied. The motion to dismiss, being predicated on the alleged status of the third-party defendant as the equivalent of a "primary parent” to the infant plaintiff (see Holodook v Spencer, 36 NY2d 35), is premature. Although perhaps subject to defeasance upon a proper showing, as drawn, the third-party complaint states a cause of action for indémnity or contribution (see Broome v Horton, 53 AD2d 1030; Barrera v General Elec. 'Co., 84 Mise 2d 901). Rabin, J. P., Gulotta, Margett and Martuscello, JJ., concur.