Israel Nowak et al., Plaintiffs, v. Gretsch Building Number Four, Inc., Defendant and Third-Party Plaintiff-Appellant: Maintenance Co., Inc., Defendant and Third-Party Defendant-Respondent, et al., Defendant, 20 A.D.2d 793

In a consolidated action wherein the five main plaintiffs seek damages for personal injury as a consequence of the fall of a passenger elevator, serviced by defendant Maintenance Co., Inc., and located in a building owned and controlled by defendant Gretsch Building Number Four, Inc., the defendant Gretsch as third-party plaintiff appeals from an order of the Supreme Court, Kings County, dated July 23, 1963, which denied its motion to serve an amended cross complaint or third-party complaint in the consolidated action upon Maintenance, as third-party defendant, and which granted the cross motion of Maintenance, as such third-party defendant, for

summary judgment dismissing the original and existent cross complaints and third-party complaints of Gretsch. Order affirmed, with $10 costs and disbursements. In our opinion, the proposed and the existing issues of active and passive negligence as between Gretsch and Maintenance are identical with those which were litigated by them and determined on the merits in the prior action on claims growing out of the same occurrence (Notow v. Gretsch Bldg. No. 4, 17 A D 2d 989, mot. for lv. to app. den. 18 A D 2d 825, 12 N Y 2d 647). Kleinfeld, Acting P. J., Christ, Brennan, Hill and Rabin, JJ., concur.