Opinion
February 25, 1974
In a negligence action to recover damages for personal injuries, defendants and third-party plaintiffs appeal from so much of an order of the Supreme Court, Kings County, entered February 9, 1973, as granted the branch of a motion by the infant third-party defendant, Wayne Henderson, that sought dismissal of the third-party complaint as to him. Order reversed insofar as appealed from, without costs, and said branch of the motion denied. It was error to dismiss the third-party complaint as against the infant third-party defendant pursuant to CPLR 3211 (subd. [a], par. 7). As a pleading it states a cause of action (see Foley v. D'Agostino, 21 A.D.2d 60). Special Term should not have looked behind the allegations of the pleading to resolve factual issues of causation, negligence and contributory negligence. Shapiro, Acting P.J., Christ, Brennan and Munder, JJ., concur; Benjamin, J., dissents and votes to affirm.