Labate v. Fort Tryon Apartments, Inc. , 157 N.Y.S.2d 204 ( 1956 )

Order unanimously reversed, with $20 costs and disbursements to the appellant, and the motion granted, with leave to the third-party plaintiff to replead. If plaintiff should prevail upon the allegations of his complaint against the third-party plaintiff, there would be no basis for a claim over against the third-party defendant-appellant. The allegations of the complaint charge the third-party plaintiff with active negligence and primary responsibility for an unsafe brick wall which it had constructed. There is no factual statement or theory of liability asserted against the third-party plaintiff which would warrant the imposition of liability on the third-party plaintiff based on passive negligence or secondary or derivative responsibility from any fault of the third-party defendant-appellant. The pleadings do not set forth any facts upon which liability could be found against the third-party plaintiff which would warrant a shifting of that liability to the third-party defendant. Concur — Peek, P. J., Breitel, Cox, Frank and Valente, JJ.