Cipollina v. Kent , 52 A.D.2d 632 ( 1976 )

Appeal from an order of the Supreme Court, Suffolk County, dated February 9, 1976, which, upon the cross motion of third-party defendant Russell in Action No. 1, which was joined in by third-party defendant St. Charles Hospital, dismissed the third-party complaint for failure to state a cause of action. Order modified, on the law and in the exercise of discretion in the interest of justice, by adding the words "without prejudice” to the end of the decretal paragraph thereof. As so modified order affirmed, without costs or disbursements. No fact findings were presented for review. In our opinion the third-party complaint states a valid cause of action for partial indemnification from the subsequent tort-feasors (see Musco v Conte, 22 AD2d 121). However, in view of the tardiness of the commencement of the third-party action and the resultant delay, confusion and prejudice it will engender in the main action, and those joined for trial therewith, it is the judgment of this court that the action should have been dismissed without prejudice pursuant to CPLR 1010 (see Henderson v Wein Hardware Co., 51 AD2d 696; Todd v Gull Contr. Co., 22 AD2d 904; see, also, Cipollina v Kent, 52 AD2d 632). Hopkins, Acting P. J., Margett, Rabin, Shapiro and Hawkins, JJ., concur.