SUPREME COURT: COUNTY OF CHAUTAUQUA
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CHERYL ANDREA & JOHN S. ANDREA;
LOUISE CIANCIO & JOSEPH CIANCIO;
MICHELLE GEISLER;
THOMAS P. KEELEY & JANET H. KELLEY;
ARTHUR V. KENNEDY & CONCETTA M. KENNEDY;
EVANGELINE LAMPER & JERRY ROBERT LAMPER;
SAMANTHEE ANN MOORE & JOHN R. MOORE;
KARA L. REED, DORIS M. REED & RUSSELL B. REED;
KIM RICHIR & LEE ANN RICHIR;
SHARYL SHEILDS & KENT C. SHIELDS;
NANCY TAYLOR; GERALDINE TEDESCO;
JOANNE M. WILFONG & CHARLES WILFONG;
Plaintiffs,
vs Index #H-10610
E.I. DuPONT DE NEMOURS & CO.;
ARNONE, HEDIN, CASKER, KENNEDY, AND DRAKE
ARCHITECTS AND LANDSCAPE ARCHITECTS, P.C.
(HABITERRA ASSOCIATES),
ASSOCIATED SYSTEMS BALANCING, INC.;
ATOMIZED MATERIALS CO., INC.;
COLOR TECHNICS CO., INC.;
DAP, INC,;
E & B EQUIPMENT AND FURNITURE, INC.;
FOAM ENTERPRISES, INC.;
FUTURA COATINGS, INC.;
HENDERSON-JOHNSON, INC.;
HERCULES INCORPORATED;
JAMES RIVER LIMESTONE COMPANY, INC.;
KINGS' HEATING & SHEET METAL, INC.;
LEES CARPETING, DIVISION OF BURLINGTON, IND.;
NICHTER CONSTRUCTION CO., INC.;
NORTHEAST DISTRIBUTORS, INC.;
PIERCE & STEVENS CORP., DIVISION OF PRATT & LAMBERT,;
ROCHESTER DAVIS-FETCH CORP.;
SPRINCHORN & COMPANY, INC.;
THE SERVICE MASTER COMPANY;
THE SHERWIN-WILLIAMS COMPANY,;
TIEDE-ZOELLER, INC.;
WRIGHT AIR CORP.;
Defendants.
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DECISION AND ORDER
GERACE, J.
Defendants, let out of the case by plaintiff, seek
dismissal, without prejudice, on the cross claims against
it.
Earlier, the Court dismissed cross claims against
defendant Sprinchorn under similar circumstances, but, as
Defendant Cannon indicates, apparently the true litigation
positions of both Cannon and Sprinchorn were not made known
to the Court at that time.
In the case of SHEPARDSON V. SINATRA, Index No.H11737,
Chautauqua County Supreme Court, where plaintiff
voluntarily discontinued his case against defendant
Sinatra, the Court denied defendant's motion to dismiss
cross claims filed against him by a co-defendant.
That denial was based on cases holding that where the
complaint is dismissed as to a defendant against whom a
codefendant has filed a cross complaint, such defendant is
not thereby entitled to a dismissal of such cross
complaint. KADISCH V. PRESTON PROPERTIES, 1 NYS2d 226;
SECOR V. LEVINE 273 AD 899, 77 NYS2d 226. See also BROOKS
V. CHEMICAL LEAMAN TANK LINES, INC. (1979,1st Dept) 71 AD2d
405, 422 NYS2d 695.
Moreover, a cross-claim can be for any claim at all,
whether or not related to the plaintiff's claim. CPLR
3019(b). Subdivision (f) provides that a cause of action
contained in a cross-claim shall be treated, as far as
practicable, as if it were contained in a complaint.
The Court is aware of FIGUEROA V. KAHN, 101 Misc.2d
821, 822, 422, N.Y.S.2d 274 (Sup.Ct. N.Y.Co. 1979),
BALDI V. BUFFALO GENERAL HOSPITAL, Index No. H-77556
(Sup.Ct. Erie Co. 1992), and NICKERSON V. BUFFALO GENERAL
HOSPITAL, Index No. 2378/88 (Sup.Ct. Erie Co. 1991) which
permitted dismissal of cross claims "without prejudice".
However, in JAVITZ V. SLATUS, 93 A.D.2d 830, 461 N.Y.S.2d
44 (2nd Dep't 1983) and CUSICK V. LUTHERAN MEDICAL CENTER,
105 A.D.2d 681, 481 N.Y.S.2d 122 (2nd Dep't 1984) where the
Court dismissed the complaint, the Courts converted the
cross claims into third party complaints.
The complaint is dismissed as against Cannon, with
prejudice, and $100.00 costs. However, the Court agrees
that as to the cross claims against it, Cannon should not
"be required to go to the trouble and expense of
participating in numerous motions, countless depositions
and reams of documentary discovery this case will no doubt
generate because Kings may have a future claim against
Cannon." (Michele K. Reusch 1/24/96 affidavit).
Therefore, the Court denies the Cannon's motion to
dismiss cross claims against it, without prejudice, on the
following conditions:
1. For most intents and purposes, all parties shall
treat Cannon as though the cross claims have been
dismissed against it, except for depositions of and
discovery demands on Cannon specifically. Counsel for
all parties are hereby directed to refrain from, and
shall be relieved of any responsibility to serve
copies of correspondence, notices, pleadings, motions,
discovery demands, EBTs, on Cannon except where Cannon
is directly and specifically involved.
2. Cannon is excused from attendance at any deposition
other than its own, and is excused from the scheduling
order of this Court herein until further order of this
Court.
3. Should this approach prove unworkable, the Court
will entertain a motion to convert the cross claims
third party complaints by Cannon. Should the cross
claims eventually be dismissed, the Court will
entertain a Cannon application for costs and counsel
fees should the facts and circumstances justify such
relief.
The complaint is dismissed as against Cannon, with
prejudice, and $100.00 costs; the motion of Cannon for
dismissal of the cross claims is denied, without prejudice.
This constitutes the Decision and Order of this Court,
the original of which will be filed in the Office of the
Chautauqua County Clerk, and a copy will be sent to Counsel
for Cannon with the direction that Counsel for Cannon
complies with CPLR 2220 so that all parties have notice of
this decision, and that within 10 days, said Counsel shall
submit to the Court a list of all papers submitted to the
Court on the motions herein.
The signing and filing of this Decision and Order and
the mailing of a copy to Counsel for Cannon shall not
constitute notice of entry required by CPLR 2220; Counsel
are not relieved from the applicable provisions of that
Rule respecting filing, entry and Notice of Entry.
Dated: February , 1996
Mayville, New York
_________________________________
JOSEPH GERACE
Supreme Court Justice
To all Counsel:
A DECISION and ORDER of which the within is a
copy, was duly granted in the above entitled action
on the day of , 1996, and filed by the
Court in the Office of the Clerk of the County of
Chautauqua on the same date.