Opinion
October 5, 1970
In an action to recover damages for negligence and breach of warranty, the defendants-third-party plaintiffs appeal from an order of the Supreme Court, Orange County, dated May 16, 1968, which granted the separate motions of the third-party defendants to dismiss the third-party complaint. Case remitted to the Special Term for a hearing to determine whether, on the facts of this case, there was a tolling of the Statute of Limitations under CPLR 207; and appeal held in abeyance pending the hearing and determination thereon. In our view the order dismissing the third-party complaint can be sustained if the Statute of Limitations has run on the main action. A third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff's claim (CPLR 1008; 2 Weinstein-Korn-Miller, N Y Civ. Prac., par. 1008.03; Marrone v. Johnson Sons, 283 App. Div. 111 4). At bar the third-party plaintiffs contend that the Statute of Limitations was never available to them because the statute was tolled under CPLR 207 and, accordingly, the defense of the statute cannot be asserted by the third-party defendants. On these papers it cannot be determined whether, as contended, the Statute of Limitations has been tolled. A determination of that pivotal question is necessary to decide the appeal. Rabin, Acting P.J., Hopkins, Munder and Benjamin, JJ., concur; Martuscello, J., dissents and votes to affirm the order upon the opinion of the Special Term. [ 64 Misc.2d 454.]