Smith v. Kollner's Inc.

The amended complaint in the main action cannot reasonably be interpreted as including an allegation of passive negligence on the part of defendant White Rock of Nassau, Inc. Hence, it may be held liable only upon proof that it was guilty of active negligence. In such circumstances it is not entitled to be indemnified by a codefendant (Putvin v. Buffalo Elec. Co., 5 N Y 2d 447; Harrington v. 615 West Corp., 2 N Y 2d 476, 483; De Veglio v. Cascade Ind. Uniform Supply Co., 12 A D 2d 980). Nolan, P. J., Ughetta, Christ, Pette and Brennan, JJ., concur.