Opinion
March 5, 1962
In an action to recover damages for personal injury, in which a summons and complaint naming only the city as a defendant were served in 1957 upon it, and in which (without leave of the court) a summons and complaint naming both the city and Giaquinto Contracting Corp., as defendants were served on Giaquinto in 1959, the said defendant Giaquinto appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County, entered December 14, 1959, as denied its motion to strike its name as a party defendant, or, in the alternative, either to require planitiffs to serve an amended complaint from which its name will be omitted as a party defendant, or to dismiss the complaint upon the ground that it (Giaquinto) was not properly added as a party. Order, insofar as appealed from, affirmed, without costs (cf. Civ. Prac. Act, §§ 192, 193; Carruthers v. Waite, 306 N.Y. 136, 141-142; Taylor v. Creary, 5 A.D.2d 876). Such affirmance, however, is without prejudice, if the respective parties be so advised: (a) to a prompt motion at Special Term for leave to add Giaquinto as a party defendant, to serve a supplemental summons upon it, and to serve an amended complaint upon it and the defendant city; and (b) to a motion at Special Term to dismiss the action as against Giaquinto in the event that the motion first mentioned be not made within 30 days after entry of the order hereon. Beldock, P.J., Brennan, Hill, Rabin and Hopkins, JJ., concur. [ 21 Misc.2d 836.]