Colichio v. Bailey

Appeal from an order of the Supreme Court at Special Term, entered January 15, 1980 in Rensselaer County, which denied a motion to dismiss respondent’s cross claim for property damages. On October 11, 1976, appellant’s automobile was in collision with respondent’s. Plaintiff was a passenger in appellant’s vehicle and sued both on April 5, 1978. Respondent cross-claimed for apportionment and for subrogated property damage. Respondent timely served an answer on plaintiff’s attorney, but failed to serve appellant’s attorney until October 23, 1979, more than three years after the accident. Appellant moved to dismiss the cross claim on the ground that it was barred by the Statute of Limitations. Special Term denied the motion and this appeal ensued. There must be an affirmance. Even though CPLR 203 (subd [c]) refers only to a defense or counterclaim and does not mention a cross claim, we are of the view that it also applies to a cross claim (Seligson v Chase Manhattan Bank, Nat. Assn., 50 AD2d 206). At the time the primary action was commenced, respondent’s cross claim was viable, the Statute of Limitations not having run. Consequently, CPLR 203 (subd [c]) applies and the cross claim is not barred. Order affirmed, with costs. Sweeney, J. P., Kane, Staley, Jr., Main and Casey, JJ., concur.