15 A.D.2d 553 | N.Y. App. Div. | 1961
The amended complaint indicates that the injuries complained of were received on January 23, 1957. This action was commenced on or about November 22, 1957, only against Queensboro Farm Products, Inc., and against Sam Gelfand, individually and doing .business as Eagle Roofing & Sheet Metal Works. Thereafter, and on July 5, 1960, Gelfand as third-party plaintiff, served upon Banner a third-party complaint. Banner’s motion to dismiss this third-party complaint was granted and, on a prior appeal from the order dismissing such complaint (13 A D 2d 674), this court modified that order to permit the service of an amended third-party complaint. Gelfand, on June 7, 1961, served an amended third-party complaint on Banner. Then, on June 16,1961, plaintiff served an amended complaint on third-party defendant Banner, joining him as a codefendant in the main action. Banner as such codefendant served its answer, pleading the Statute of Limitations, and moved for summary judgment dismissing the amended complaint as to it. In our opinion the amended complaint alleges a cause of action based solely upon negligence, which is governed by the three-year period of limitations (Civ. Prac. Act, § 49, subd. 6). For negligently causing his injuries on January 23, 1957, plaintiff did not assert any claim against Banner until June 16, 1961, more than four years after the accrual thereof (Civ. Prae. Act, § 11). Subdivision 3 of section 193-a of the Civil Practice Act neither bars a defendant from asserting the Statute of Limitations as a defense, nor serves to extend the time in which a party may assert a cause of action (Spen & Co. v. Ocean Box Corp., 16 Misc 2d 436; Twelfth Annual Report of N. Y. Judicial Council, 1946, p. 192 et seq.). Although the amended complaint alleges that Banner and Gelfand are joint venturers, the cause of action against Banner may not be deemed to have been commenced as of the service of the summons and complaint on defendant Gelfand on November 22, 1957, since at that time Banner had not been named as a eodefendant in the main action (Civ. Prac. Act, § 16; Gray v. Vought & Co., 216 App. Div. 230). Beldoek, Acting P. J., Kleinfeld, Christ, Pette and Brennan, JJ., concur.