Majority
p. 980(February 25, 1974) Perry Bell, an Infant, by His Mother and Natural Guardian, Barbara Fletcher, et al., Plaintiffs, v. U Haul Co., Inc., et al., Defendants and Third-Party Plaintiffs-Appellants. Barbara Fletcher, Third-Party Defendant; and Wayne Henderson, an Infant, by His Guardian ad Litem, John Doe, Third-Party Defendant-Respondent.
In a negligence action to recover damages for personal injuries, defendants and third-party plaintiffs appeal from so much of an order of the Supreme Court, Kings County, entered February 9, 1973, as granted the branch of a motion by the infant third-party defendant, Wayne Henderson, that sought dismissal- of the third-party complaint as to him. Order reversed insofar as appealed from, without costs, and said branch of the motion denied. It was error to dismiss the third-party complaint as against the infant third-party defendant pursuant to CPLR 3211 (subd. [a], par. 7). As a pleading it states a cause of action (see Foley v. D>Agostmo, 21 A D 2d 60 ) . Special
p. 981
Term should-not have looked behind the allegations of the pleading to resolve factual issues of causation, negligence and contributory negligence. Shapiro, Acting P. J., Christ, Brennan and Munder, JJ., concur; Benjamin, J., dissents and votes to affirm.
Cases cited
- Foley v. D'Agostino 21 A D 2d 60 p. 980