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FITZPATRICK v. CITY OF NY

185 Misc.2d 79 (2000)

714 N.Y.S.2d 185

THEA FITZPATRICK et al., Plaintiffs, v. CITY OF NEW YORK et al., Defendants.

Supreme Court, New York County.

June 13, 2000.

Attorney(s) appearing for the Case

Lian, Malapero & Prisco, New York City (George Mahoney of counsel), for Roadway Contracting, Inc., defendant.

Gucciardo Law Firm, New York City (Brian W. Raum of counsel), for plaintiffs.

Michael D. Hess, Corporation Counsel (Elizabeth Dooley of counsel), for City of New York, defendant.

Richard W. Babinecz, New York City (Charmaine Marlowe of counsel), for Consolidated Edison of New York, Incorporated, defendant.

McAndrew, Conboy & Prisco, Woodbury (Thomas McCarthy of counsel), for Empire City Subway Co.

Ltd., defendant.

Dwyer, Ryan & Gulino, New York City (Joseph Gulino of counsel), for Citywide Asphalt Paving Company, defendant.

OPINION OF THE COURT

MICHAEL D. STALLMAN, J.

This motion for summary judgment requires examination of the "relation-back" doctrine. Does defendant's commencement of a third-party action seeking contractual and common-law indemnification for negligence permit a plaintiff to subsequently sue the third-party defendant directly for negligence? Did the third-party defendant's nonassertion of the Statute of Limitations in the third-party action waive such a defense...

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