second cross claim in New York

2012The California Supreme Court has also explained that “[w]hether conduct constitutes active or passive negligence depends upon the circumstances of a given case and is ordinarily a question for the trier of fact; active negligence may be determined as a matter of law, however, when the evidence is so clear and undisputed that reasonable persons could not disagree” (Rossmoor, 13 Cal 3d at 629, 532 P2d at 101 ).

2012The California Supreme Court has also explained that “[w]hether conduct constitutes active or passive negligence depends upon the circumstances of a given case and is ordinarily a question for the trier of fact; active negligence may be determined as a matter of law, however, when the evidence is so clear and undisputed that reasonable persons could not disagree” (Rossmoor, 13 Cal 3d at 629, 532 P2d at 101 ).

2004The Supreme Court properly granted that branch of the motion of the defendant Town of Babylon which was for summary judgment dismissing the appellant’s second cross claim alleging breach of contract (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

1995We reject the contention of Mid-State and Seaboard that the Liquidating Agreement effectively shields them from liability to EFC for breach of contract (see, Lambert Houses Redevelopment Co. v HRH Equity Corp., 117 AD2d 227, 231 ; Ardsley Constr.

1986In his decision of September 18, 1984, Justice Hughes wrote "Fay’s is entitled to the relief requested against the codefendant Aragona upon the second cross claim since Aragona’s promise to procure liability insurance naming Fay’s as an additional insured renders it liable for Fay’s defense costs (see Grineff v. Ithaca Coll., 79 Misc 2d 831 , affd. 49 AD2d 669 )”.

1986In his decision of September 18, 1984, Justice Hughes wrote "Fay’s is entitled to the relief requested against the codefendant Aragona upon the second cross claim since Aragona’s promise to procure liability insurance naming Fay’s as an additional insured renders it liable for Fay’s defense costs (see Grineff v. Ithaca Coll., 79 Misc 2d 831 , affd. 49 AD2d 669 )”.

1979The second cross claim in the amended answer sought an accounting, and was identical to the cross claim previously held sufficient by Special Term and this court (Rappaport v Blank, 66 AD2d 690 , supra), except for the addition of Irv-Mill Tavern, Inc., as a defendant.

1979Mollen, P. J., Lazer, Cohalan and Gibbons, JJ., concur. [ 99 Misc 2d 742 .]

1977For the purpose of section 3813, a claim accrues at the time the damages become ascertainable (see Scherman v Board of Educ., 44 AD2d 831 , affd 37 NY2d 839 ).

1977For the purpose of section 3813, a claim accrues at the time the damages become ascertainable (see Scherman v Board of Educ., 44 AD2d 831 , affd 37 NY2d 839 ).

1967Although we do not, in discussing this second cross claim, hold that all defendants are joint tort-feasors as such, we do conclude that, to permit recovery-over would run afoul of the spirit and logic of the rule that one who is actively negligent cannot seek indemnification from another joint tort-feasor, absent an unequivocal contract therefor “ clearly expressed ” (Dick v. Sunbright Steam Laundry Corp., 307 N. Y. 422, 425 ).

1947(Jefno Realty Corp. v. Lloyds Film Storage Corp., 191 Misc. 471 , and cases therein cited.) It follows that the second cross claim, which has no relation whatsoever to the plaintiff’s causes of action, has been improp erly asserted in this action and is therefore dismissed, without prejudice.