Bell v. U Haul Co. (43 A.D.2d 980, 1974)

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 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.