STATE OF NEW YORK

SUPREME COURT: COUNTY OF CHAUTAUQUA

_____________________________________________

CHERYL ANDREA & JOHN S. ANDREA;

LOUISE CIANCIO & JOSEPH CIANCIO;

MICHELLE GEISLER;

THOMAS P. KEELEY & JANET H. KELLEY;

ARTHUR V. KENNEDY & CONCETTA M. KENNEDY;

EVANGELINE LAMPER & JERRY ROBERT LAMPER;

SAMANTHEE ANN MOORE & JOHN R. MOORE;

KARA L. REED, DORIS M. REED & RUSSELL B. REED;

KIM RICHIR & LEE ANN RICHIR;

SHARYL SHEILDS & KENT C. SHIELDS;

NANCY TAYLOR; GERALDINE TEDESCO;

JOANNE M. WILFONG & CHARLES WILFONG;

Plaintiffs,

vs Index #H-10610

E.I. DuPONT DE NEMOURS & CO.;

ARNONE, HEDIN, CASKER, KENNEDY, AND DRAKE

ARCHITECTS AND LANDSCAPE ARCHITECTS, P.C.

(HABITERRA ASSOCIATES),

ASSOCIATED SYSTEMS BALANCING, INC.;

ATOMIZED MATERIALS CO., INC.;

COLOR TECHNICS CO., INC.;

DAP, INC,;

E & B EQUIPMENT AND FURNITURE, INC.;

FOAM ENTERPRISES, INC.;

FUTURA COATINGS, INC.;

HENDERSON-JOHNSON, INC.;

HERCULES INCORPORATED;

JAMES RIVER LIMESTONE COMPANY, INC.;

KINGS' HEATING & SHEET METAL, INC.;

LEES CARPETING, DIVISION OF BURLINGTON, IND.;

NICHTER CONSTRUCTION CO., INC.;

NORTHEAST DISTRIBUTORS, INC.;

PIERCE & STEVENS CORP., DIVISION OF PRATT & LAMBERT,;

ROCHESTER DAVIS-FETCH CORP.;

SPRINCHORN & COMPANY, INC.;

THE SERVICE MASTER COMPANY;

THE SHERWIN-WILLIAMS COMPANY,;

TIEDE-ZOELLER, INC.;

WRIGHT AIR CORP.;

Defendants.

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DECISION AND ORDER

GERACE, J.

Defendants, let out of the case by plaintiff, seek

dismissal, without prejudice, on the cross claims against

it.

Earlier, the Court dismissed cross claims against

defendant Sprinchorn under similar circumstances, but, as

Defendant Cannon indicates, apparently the true litigation

positions of both Cannon and Sprinchorn were not made known

to the Court at that time.

In the case of SHEPARDSON V. SINATRA, Index No.H11737,

Chautauqua County Supreme Court, where plaintiff

voluntarily discontinued his case against defendant

Sinatra, the Court denied defendant's motion to dismiss

cross claims filed against him by a co-defendant.

That denial was based on cases holding that where the

complaint is dismissed as to a defendant against whom a

codefendant has filed a cross complaint, such defendant is

not thereby entitled to a dismissal of such cross

complaint. KADISCH V. PRESTON PROPERTIES, 1 NYS2d 226;

SECOR V. LEVINE 273 AD 899, 77 NYS2d 226. See also BROOKS

V. CHEMICAL LEAMAN TANK LINES, INC. (1979,1st Dept) 71 AD2d

405, 422 NYS2d 695.

Moreover, a cross-claim can be for any claim at all,

whether or not related to the plaintiff's claim. CPLR

3019(b). Subdivision (f) provides that a cause of action

contained in a cross-claim shall be treated, as far as

practicable, as if it were contained in a complaint.

The Court is aware of FIGUEROA V. KAHN, 101 Misc.2d

821, 822, 422, N.Y.S.2d 274 (Sup.Ct. N.Y.Co. 1979),

BALDI V. BUFFALO GENERAL HOSPITAL, Index No. H-77556

(Sup.Ct. Erie Co. 1992), and NICKERSON V. BUFFALO GENERAL

HOSPITAL, Index No. 2378/88 (Sup.Ct. Erie Co. 1991) which

permitted dismissal of cross claims "without prejudice".

However, in JAVITZ V. SLATUS, 93 A.D.2d 830, 461 N.Y.S.2d

44 (2nd Dep't 1983) and CUSICK V. LUTHERAN MEDICAL CENTER,

105 A.D.2d 681, 481 N.Y.S.2d 122 (2nd Dep't 1984) where the

Court dismissed the complaint, the Courts converted the

cross claims into third party complaints.

The complaint is dismissed as against Cannon, with

prejudice, and $100.00 costs. However, the Court agrees

that as to the cross claims against it, Cannon should not

"be required to go to the trouble and expense of

participating in numerous motions, countless depositions

and reams of documentary discovery this case will no doubt

generate because Kings may have a future claim against

Cannon." (Michele K. Reusch 1/24/96 affidavit).

Therefore, the Court denies the Cannon's motion to

dismiss cross claims against it, without prejudice, on the

following conditions:

1. For most intents and purposes, all parties shall

treat Cannon as though the cross claims have been

dismissed against it, except for depositions of and

discovery demands on Cannon specifically. Counsel for

all parties are hereby directed to refrain from, and

shall be relieved of any responsibility to serve

copies of correspondence, notices, pleadings, motions,

discovery demands, EBTs, on Cannon except where Cannon

is directly and specifically involved.

2. Cannon is excused from attendance at any deposition

other than its own, and is excused from the scheduling

order of this Court herein until further order of this

Court.

3. Should this approach prove unworkable, the Court

will entertain a motion to convert the cross claims

third party complaints by Cannon. Should the cross

claims eventually be dismissed, the Court will

entertain a Cannon application for costs and counsel

fees should the facts and circumstances justify such

relief.

The complaint is dismissed as against Cannon, with

prejudice, and $100.00 costs; the motion of Cannon for

dismissal of the cross claims is denied, without prejudice.

This constitutes the Decision and Order of this Court,

the original of which will be filed in the Office of the

Chautauqua County Clerk, and a copy will be sent to Counsel

for Cannon with the direction that Counsel for Cannon

complies with CPLR 2220 so that all parties have notice of

this decision, and that within 10 days, said Counsel shall

submit to the Court a list of all papers submitted to the

Court on the motions herein.

The signing and filing of this Decision and Order and

the mailing of a copy to Counsel for Cannon shall not

constitute notice of entry required by CPLR 2220; Counsel

are not relieved from the applicable provisions of that

Rule respecting filing, entry and Notice of Entry.

Dated: February , 1996

Mayville, New York

_________________________________

JOSEPH GERACE

Supreme Court Justice

To all Counsel:

A DECISION and ORDER of which the within is a

copy, was duly granted in the above entitled action

on the day of , 1996, and filed by the

Court in the Office of the Clerk of the County of

Chautauqua on the same date.