Opinion
December 31, 1964
Gottlieb Hahn for Herk Elevator Maintenance, Inc., defendant.
Bachkoff Miller Steger for Irving Mallin, defendant.
This motion by a defendant to compel his codefendant to accept service of his answer containing a cross complaint against the latter is granted.
Under the Civil Practice Act such service could be made at any time up to 20 days before the trial and no pleading responsive thereto was required. CPLR has changed the procedure with respect to cross claims. An answer to a cross claim is now required by CPLR 3011. But there is no special provision as to its service upon a codefendant. Its service is governed by the general provisions in CPLR 3012 that a subsequent pleading (after the complaint) which asserts new or additional claims for relief shall be served upon a party who has not appeared in the manner provided for service of a summons and upon one who has appeared in the manner provided for service of papers in an action. The time for service of an answer, which embraces an answer containing a cross claim, is 20 days after service of the complaint (or 30 days after service is complete, if served with summons in any manner other than personal delivery in the State).
Service of an answer containing a cross complaint upon a codefendant who is not served by plaintiff is of no effect and in practice defendants do not serve codefendants until they learn of their appearance in the action and then they serve as permitted their attorneys. Unless the delay is shown to be prejudicial in some respect, the courts will not penalize late service upon codefendants in view of the unclear service of pleading provisions when applied to cross claims and the practical problem involved. Defendants asserting cross claims should avail themselves of CPLR 2103 (subd. [e]) and demand of plaintiffs a list of those parties who have appeared.
No prejudice is here shown. Nor can the sufficiency of the cross complaint be questioned on this motion. That may be tested only on a motion to dismiss. The answer shall be served on the codefendant within 10 days after publication of this determination.