## Facts

- Plaintiffs were involved in an automobile collision with a vehicle driven by Howard Widmaier and owned by Kathleen Widmaier.
- Kathleen Widmaier was not present in the vehicle at the time of the accident.
- Plaintiffs sued Howard (driver) and Kathleen (owner) for personal injuries arising from the collision.
- Kathleen asserted a counterclaim against plaintiffs for property damage to her vehicle.
- In their reply to Kathleen’s counterclaim, plaintiffs attempted to assert a “cross-claim” against co-defendant Howard seeking indemnification if plaintiffs were held liable for Kathleen’s property damage.

## Issues

1. Whether CPLR 3019 permits a party, in a reply to a counterclaim, to assert a cross-claim (or new affirmative claim) against a co-defendant.
2. If not, whether the court should nevertheless allow the claim to stand by treating the reply as an amended pleading or other permissible procedural device.

## Decision

- The court granted the motion to dismiss the purported cross-claim asserted in the reply.
- The court held that CPLR 3019 does not authorize asserting a cross-claim for the first time in a reply.
- The dismissal was based on improper pleading form, not on rejection of the underlying indemnification theory.
- The court indicated the claim could be pursued, if at all, through proper procedural means (e.g., a motion to amend or another authorized pleading mechanism).

## Legal Principles

- CPLR 3019 allocates counterclaims and cross-claims to specified pleadings; a reply is not a vehicle to initiate a new cross-claim against a co-defendant.
- A reply’s function is to respond to a counterclaim (admissions, denials, defenses), not to assert new affirmative claims against another party.
- Liberal pleading and amendment policies do not permit courts to disregard statutory pleading requirements; parties must seek leave to amend or use authorized procedures to add claims.

## Conclusion

The court dismissed plaintiffs’ indemnification cross-claim because CPLR 3019 does not allow a new cross-claim to be asserted in a reply to a counterclaim, requiring parties to use proper pleadings or obtain leave to amend to add such claims.


De Mato v. County of Suffolk, 79 Misc. 2d 484, 360 N.Y.S.2d 570 (Sup. Ct. Suffolk Cnty. 1974)