Opinion
April 8, 1971
Appeal from the Erie Special Term.
Present — Goldman, P.J., Del Vecchio, Witmer, Gabrielli and Cardamone, JJ.
Order unanimously reversed, with costs, motion granted and third-party complaint dismissed. Memorandum: Plaintiff, an employee of third-party defendant Amadori Construction Co., Inc. (Amadori) and a coemployee of third-party defendant Alvin Rhodes, was injured on the job when a crawler type backhoe owned by Amadori and operated by Rhodes ran into and upon him. Plaintiff brought action against Warner Swasey Co. (Warner) and Dow Company (Dow), alleging that the backhoe was manufactured and marketed to Amadori by Warner and Dow. He further alleged that his injuries were caused solely by reason of the negligence of said defendants, in that they failed to install upon said backhoe adequate warning and safety devices, failed in design and construction to provide adequate visibility for the operation of the machine, and failed to instruct or supervise with respect to the proper use of the machine. Warner then served a third-party summons and complaint upon Amadori and Rhodes, alleging that plaintiff's injury was caused by their negligence, and if any negligence of Warner contributed thereto, it was merely passive in nature and that Amadori and Rhodes were primarily responsible. Warner alleged that the negligence of Rhodes consisted of operating the machine without looking where he was going, with inadequate brakes, at an excessive rate of speed, and without having it under control; and that the negligence of Amadori consisted of employing Rhodes, an incompetent operator, without giving him proper instruction or supervision, and in failing to maintain the job site in good condition. Amadori moved for dismissal of the third-party complaint as a matter of law, and appeals from the denial of the motion. The motion should have been granted. The original complaint contains no allegation of passive negligence on the part of Warner, the defendant third-party plaintiff ( Bush Term. Bldgs. v. Luckenbach S.S. Co., 9 N.Y.2d 426; Glomboski v. Baltimore Ohio R.R., 35 A.D.2d 772; La Rosa v. Furhmann Co., 34 A.D.2d 881). The third-party complaint reveals no theory upon which the third-party defendant Amadori "is or may be liable to" defendant third-party Warner (CPLR 1007). Moreover, the allegations in the third-party complaint of negligence by the third-party defendants are not related to the allegations of negligence contained in the original complaint. Instead, they constitute a complete defense to the original complaint, and if established, the original complaint must be dismissed, because the third-party defendants are not parties thereto ( Coffey v. Flower City Carting Excavating Co., 2 A.D.2d 191, 192, affd. 2 N.Y.2d 898; Dole v. Dow Chem. Co., 35 A.D.2d 149, 151-152; La Rosa v. Furhmann Co., supra; Scivetti v. Niagara Mohawk Power Corp., 33 A.D.2d 884). If the complaints could be read as charging the original defendants and the third-party defendants with concurring negligence causing plaintiff's injury, that still would not help Warner, for it would be an active joint tort-feasor, with no common-law right of indemnity against the third-party defendants ( Bush Term. Bldgs. v. Luckenbach S.S. Co., 9 N.Y.2d 426, supra; Bernardo v. Fordham Hoisting Equip. Co., 6 A.D.2d 619, affd. 6 N.Y.2d 733; McKee v. Alboro Crane Rental Corp., 18 A.D.2d 679).