Majority
p. 825Dorothy Honigsberg, Plaintiff, v. Philip Myer et al., Defendants. Samuel Scheller, as Executor of Julius Myer, Deceased, Defendant and Third-Party Plaintiff-Appellant, v. Lucille B. Howard, Individually and Doing Business as Dresden Nursing Home, Third-Party Defendant-Respondent.
Order, and judgment entered thereon, unanimously reversed, with costs to third-party plaintiff-appellant and third-party defendant’s motion denied. Although the complaint alleges lack of knowledge on the part of nursing home, the third-party defendant, as well as on the part of the plaintiff, as to the propensities of the decedent, plaintiff may not be required to prove lack of knowledge on the part of the nursing home to make out a cause of action against the decedent’s estate, and the third-party defendant might be liable over to the estate for plaintiff’s claim against the estate. The third-party complaint should not have been dismissed on motion. Settle order on notice. Present — Peek, P. J., Glennon, Cohn, Callahan and Shientag, JJ.