Aprea v. City of New York , 11 Misc. 2d 645 ( 1958 )

James S. Brown, J.

The third-party defendant moves to strike out plaintiffs’ amended complaint on the ground that it was not timely served. The plaintiffs cross-move for an order nunc pro tunc granting leave to serve an amended complaint or, in the alternative, for an order granting such leave pursuant to section 193-a of the Civil Practice Act.

In the original complaint the City of New York was the only defendant named in the action. The city impleaded the third-party defendants and issue was joined between them on September 12,1957. On December 12,1957 plaintiffs served an amended complaint naming not only the City of New York but also the third-party defendant as defendants. The third-party defendant now urges that since more than 20 days had elapsed after the joinder of issue between the City of New York and the third-party defendant, the plaintiffs lost their right to serve an amended complaint without leave of the court.

Under subdivision 3 of said section 193-a, a plaintiff may amend his pleading to assert against a third-party defendant any claim which plaintiff might have asserted against the third-party defendant had he been joined originally as a defendant. This may be done as of course without the necessity of securing leave of the court. The section does not set forth any limitation of time within which such right may be exercised nor is this privilege limited by the provisions of section 244 of the Civil Practice Act. That latter section contemplates the amendment of a complaint previously served upon a defendant. Subdivision 3 of section 193-a contemplates the original service of a complaint upon a new defendant. After such service under subdivision 3 of section 193-a, then any amendment would be subject to the provisions of section 244. Accordingly, the motion must be denied. The cross motion is denied as unnecessary.

Submit order.