Opinion
June 14, 1960
Order unanimously modified on the law and in the exercise of discretion, without costs, to provide that it be without prejudice to a renewal of the motion for summary judgment by the plaintiff, if so advised, after issue has been joined by the third-party defendants, and, as so modified, affirmed, without costs. Subdivision 2 of section 193-a of the Civil Practice Act expressly gives the third-party defendants the right to contest and defend against the plaintiff's claim. The answer of the third-party defendants may well assert defenses to the claim in chief and thus give them the status of adverse parties vis-a-vis the plaintiff (see Bizzarro v. Zimkot Realty Corp., 283 App. Div. 816). If such defenses should be asserted, they would then be entitled to notice of an application for summary judgment and an opportunity to be heard thereon for the disposition of plaintiff's motion for summary judgment against the defendant might preclude them from defending against the complaint. However, in advance of joinder of issue by the third-party defendants we cannot determine whether such rights will be theirs. The instant application, having been made in advance of the service of an answer by the third-party defendants, it may not be entertained.
Concur — Breitel, J.P., Rabin, McNally, Stevens and Noonan, JJ. [ 15 Misc.2d 991.]