We now hold that CPLR 203 (e) should be so construed as to allow the plaintiff's claim against the third-party defendant to relate back to the date of the service of the third-party complaint. Since the third-party complaint was served within the applicable period of limitation, dismissal of the plaintiff's claim against the third-party defendant on the ground of the Statute of Limitations is precluded ( see, Holst v. Edinger, 93 A.D.2d 313, 315-316 [1st Dept]; Lancaster Silo Block Co. v. Northern Propane Gas Co., 75 A.D.2d 55, 60 [4th Dept]).
It "has been held in all four Departments of this state that under certain circumstances CPLR 203(e) should be construed to allow the plaintiff to assert a claim against the third-party defendant, after the statute of limitations has expired, to relate back to the date of service of the third party complaint" (Holst v Edinger, 93 AD2d 313 [1st Dept. 1983]; Schuler v Grand Metro Bldg. Corp., 118 A.D.2d 633, [2d Dept. 1986]; Jones v Gelles, 125 AD2d 794 [3d Dept. 1986]; Boxhorn v Alliance Imaging, Inc., 74 AD3d 1735 [4th Dept. 2010]).
The Appellate Divisions have divided in their treatment of applications to amend complaints in these circumstances. The First and Fourth Departments have held, contrary to the Third Department, that because service of a third-party complaint gives the third-party defendant adequate notice of the transactions or occurrences underlying the litigation, for purposes of the Statute of Limitations, an amendment asserting a direct claim relates back to the service of the third-party complaint (Holst v Edinger, 93 A.D.2d 313 [1st Dept]; Lancaster Silo Block Co. v Northern Propane Gas Co., 75 A.D.2d 55 [4th Dept]). The Second Department initially followed the same approach as the Third Department (Allstate Ins. Co. v Emsco Homes, 93 A.D.2d 874; Trybus v Nipark Realty Corp., 26 A.D.2d 563; see also, Brock v Bua, 83 A.D.2d 61, 65, n), but recently attempted to distinguish the earlier cases and embraced the position of the First and Fourth Departments (Cucuzza v Vaccaro, 109 A.D.2d 101, stay denied 66 N.Y.2d 760).
The record contains sufficient factual allegations to support the proposed amended complaint. As third-party defendants had notice of these claims from the time they were served with the owner's third-party complaint (CPLR 1007), the amended complaint relates back to the time of service ( Duffy v. Horton Mem. Hosp., 66 N.Y.2d 473; see also, Holst v. Edinger, 93 A.D.2d 313). There is testimony that indicates defendant Gristede's "affirmatively caused the defect * * * [and] negligently * * * repaired the sidewalk" so as to render it liable to plaintiff ( Hausser v. Giunta, 88 N.Y.2d 449, 453, citing Colson v. Wood Realty Co., 39 A.D.2d 511, 512).
On the contrary, it had actual notice of the nature of plaintiff's potential claim once it was served with the seventh-party complaint on July 31, 1981 and, realistically, it is no worse off now than it would have been had the amended complaint been served as of right, pursuant to CPLR 1009, within 20 days after service of the seventh-party pleading. (See, Holst v. Edinger, 93 A.D.2d 313, 316.)
Appeal from the Supreme Court, Nassau County (Balletta, J.). Order reversed, with costs payable by the respondent, and motion granted (see, Cucuzza v Vaccaro, 109 A.D.2d 101, affd 67 N.Y.2d 825; Holst v Edinger, 93 A.D.2d 313, 316). The plaintiffs shall serve their amended complaint within 20 days after service upon them of a copy of the order to be made hereon, with notice of entry.
The plaintiffs were not obligated to serve a supplemental summons along with their amended complaint because the third-party defendant was not a "new party" within the meaning of CPLR 305 (a). He was "fully a party to this action with clear notice of the allegations charging him with ultimate liability" from the time of service of the third-party complaint (see, Cucuzza v. Vaccarro, 109 A.D.2d 101, 104, supra;Holst v. Edinger, 93 A.D.2d 313, 315-316). Mangano, J.P., Gibbons, Brown and Kooper, JJ., concur.
For purposes of CPLR 203 (subd [c]), the "complaint" must be deemed to be a pleading in which a claim is asserted against the party claiming that the statute is tolled, i.e., the cross claim or third-party claim by the original defendants in the Federal action interposed March 24, 1974 against the present plaintiff. That appears to be the view taken by this court in Seligson v Chase Manhattan Bank ( 50 A.D.2d 206), and in Holst v Edinger ( 93 A.D.2d 313). To hold that in these circumstances the Statute of Limitations is tolled as of the time of the service of the original complaint by the original plaintiffs would leave open the possibility that if, say, some years have elapsed between the original institution of the action and the time when a defendant in that action serves a cross claim or third-party claim against a new party, a claim that had been barred for some years would be revived.
Hoist v Edinger, 93 A.D.2d 313, 316 (1st Dept 1983) .
It "has been held in all four Departments of this state that under certain circumstances CPLR 203(e) should be construed to allow the plaintiff to assert a claim against the third-party defendant, after the statute of limitations has expired, to relate back to the date of service of the third party complaint" (Gibel v. Resnik Holdings of Mt. Vernon, Inc., 42 Misc.3d 887, 978 N.Y.S.2d 675[Supreme Court, Westchester County 2014]; see Hoist v. Edinger, 93 A.D.2d 313, 461 N.Y.S.2d 813 [1st Dept.1983]; Schuler v. Grand Metro Bldg. Corp., 118 A.D.2d 633, 499 N.Y.S.2d 786 [2d Dept. 1986]; Jones v. Gelles, 125 A.D.2d 794, 509 N.Y.S.2d 900 [3d Dept. 1986]; Boxhorn v. Alliance Imaging, Inc., 74 A.D.3d 1735, 901 N.Y.S.2d 891 [4th Dept. 2010] (emphasis added)).