Bizzarro v. Zimkot Realty Corp.

— In an action to recover damages for personal injuries, defendant appeals from an order insofar as it denied defendant’s motion to vacate or modify plaintiff’s notice to examine, before trial, the third-party defendant as a party. Order affirmed, with $10 costs and disbursements. Having elected to contest plaintiff’s claim, the third-party defendant is a party adverse to the plaintiff (Civ. Prac. Act, § 193-a, subd. 2) and may be examined before trial as such. Schmidt, Beldock and Murphy, JJ., concur; Nolan, P. J., and MaeCrate, J., dissent and vote to dismiss the appeal on the ground that appellant is not a party aggrieved. (Nixon v. Beacon Transp. Corp., 239 App. Div. 830.)