Opinion
October 16, 1961
In an action to recover damages for wrongful death, in which defendant, 480 Park Avenue Corporation, served a third-party complaint, the third-party defendant, Allwyn Contracting Co., Inc., appeals from an order of the Supreme Court, Kings County, dated May 11, 1961, denying its motion to dismiss the third-party complaint for insufficiency. Order reversed, with $10 costs and disbursements; motion granted, without costs, and with leave to the Park Avenue Corporation, as third-party plaintiff, to serve an amended third-party complaint, if so advised, within 20 days after entry of the order hereon. The third-party plaintiff in its third-party complaint asserts that it was not in control of the premises where the accident occurred, and it unequivocally disavows any negligence on its part. Consequently, there is no valid basis for a claim over against the third-party defendant pursuant to section 193-a of the Civil Practice Act ( Kile v. Riefler Bros. Contrs., 282 App. Div. 1000; Wolf v. La Rose Sons, 272 App. Div. 932, affd. 298 N.Y. 597; Resnick v. City of New York, 286 App. Div. 861). Nolan, P.J., Beldock, Ughetta, Kleinfeld and Christ, JJ., concur.