Opinion
July 5, 1966
In a negligence action to recover damages for personal injuries arising from an automobile accident, the defendant automobile owner appeals from an order of the Supreme Court, Kings County, entered February 7, 1966, which denied his motion to serve an amended answer alleging a cross claim for indemnity against his codefendants, a service station and its employee, the driver of the automobile. Order reversed, without costs, and motion granted. The proposed answer printed in the record on appeal shall be deemed to be the amended answer; and the codefendants' time to answer with respect to the cross claim is extended until 20 days after entry of the order hereon. In our opinion, under all the circumstances, it was an improvident exercise of discretion to deny leave to the owner to serve an amended answer alleging a cross claim against the service station that had possession of the vehicle and its employee who drove the vehicle at the time of the accident (CPLR 3025; Traub v. Dinzler, 309 N.Y. 395). Beldock, P.J., Ughetta, Christ, Brennan and Hopkins, JJ., concur.