Opinion
May 21, 1964
Appeal from the Monroe Special Term.
Present — Williams, P.J., Bastow, Goldman, Henry and Del Vecchio, JJ.
Order unanimously reversed, without costs, and motion denied, without costs. Memorandum: It is not clear that the plaintiff cannot recover from the defendant Rochester Gas and Electric Corporation on the basis of passive negligence. That being so, the second cause of action in the third-party complaint was improperly dismissed as insufficient in law. This is particularly so when the cause of action which was dismissed is viewed in the light of 3013 and subdivision (a) of 3017 of the Civil Practice Law and Rules. (See, also, 3 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 3013.03; also Foley v. D'Agostino, 21 A.D.2d 60.)