Ainspan v. City of Albany

Levine, J., concurs in a separate memorandum. Levine, J. (concurring).

The majority appears to hold that, because plaintiffs in the primary action are seeking a declaration of no liability for tax assessments on the public improvements, the claim over does not lie under the literal language of CPLR 1007. In effect, this ruling would bar a third-party claim over in any declaratory action where the primary plaintiff is requesting an adjudication of no liability. I am not prepared to put such an absolute restriction on third-party practice, given the liberal construction which has been given to CPLR 1007 *914(see, Cohen Agency v Perlman Agency, 51 NY2d 358, 364-365). There may well be situations where a legal obligation of the third-party plaintiff arises out of or is contingent upon the nonliability of the plaintiff to the defendant, in which case impleader would be an appropriate, expeditious and efficient way to determine the interlocking jural relationships between all parties, within the intendment of CPLR 1007 (see, Zurich Ins. Co. v White, 129 AD2d 388; BBIG Realty Corp. v Ginsberg, 111 AD2d 91, 93; Rausch v Garland, 88 AD2d 1021, 1022; Norman Co. v County of Nassau, 63 Misc 2d 965, 969 [Meyer, J.]; Siegel, NY Prac § 157, at 201). Here, however, the third-party complaint fails to allege any legal basis for liability of third-party defendants to pay for the improvements which arise out of the inability of defendant City of Albany to impose assessments against plaintiffs. No acts or omissions of third-party defendants have been pleaded which caused or contributed to the possible legal disability of the city to assess plaintiffs. Accordingly, I agree with the majority that the third-party complaint should have been dismissed.