Opinion
January 27, 1975
Appeal from an order of the Supreme Court, Suffolk County, entered February 8, 1974, which denied defendant's motion to amend its answer in Action No. 1 so as to assert a claim over against plaintiff in that action. Order affirmed, with $20 costs and disbursements. While the proposed claim over for indemnity was undoubtedly timely interposed ( Musco v. Conte, 22 A.D.2d 121; Satta v. City of New York, 272 App. Div. 782), it was, nevertheless, insufficient in point of law and therefore leave was properly denied ( Zillman v. Meadowbrook Hosp. Co., 45 A.D.2d 267; Grafer v. Marko Beer Beverages, 36 A.D.2d 295, app. dsmd. 29 N.Y.2d 641). Hopkins, Acting P.J., Latham, Cohalan and Brennan, JJ., concur; Shapiro, J., dissents and votes to reverse the order and to grant the motion, with the following memorandum: The proposed claim over sounds in indemnity and is therefore not barred by Statutes of Limitation ( Musco v. Conte, 22 A.D.2d 121). Respondent's reliance upon such cases as Grafer v. Marko Beer Beverages ( 36 A.D.2d 295, app. dsmd. 29 N.Y.2d 641) and Beckerman v. Walter J. Munro, Inc. ( 25 A.D.2d 448) cannot be determined on the conflicting statements in the papers. In view of the liberal policy favoring amendments of pleadings (CPLR 3025, subd. [b]) the motion should have been granted.