
    Marc Gorsage, an Infant, by His Father and Natural Guardian Eugene Gorsage, et al., Plaintiffs, v. Board of Education of the Niskayuna Public Schools, Defendant and Third-Party Plaintiff. Hamilton Manufacturing Company, Third-Party Defendant.
    Supreme Court, Special Term, Schenectady County,
    August 8, 1972.
    
      
      Maynard, O’Connor & ■Smith for defendant and third-party plaintiff. Bender, Kesson, Ford & Grogan for third-party defendant.
   ^Edward JS. Cowway, J.

This is a motion by the third-party defendant for an order dismissing the third-party complaint as against the third-party defendant herein, for failure to prosecute pursuant to CPLR 3216, on the grounds it fails to state facts sufficient to constitute a cause of action over on its face.

The third-party plaintiff in its third-party complaint alleges that the plaintiff, was injured as .a result, among other things, of a leak in a propane gas line and that the third-party complaint further alleges that any leak in said gas line would be due to the improper design and/or manufacture of said gas burner which was purchased from the third-party defendant by the third-party plaintiff.

It is the contention of the third-party plaintiff that the decision in Dole v. Dow Chem. Co. (30 N Y 2d 143) would require some contribution if not an entire judgment over from the third-party defendant to the third-party plaintiff. This court must agree with this contention if the third-party plaintiff proves its contention of the facts to the satisfaction of a jury.

This court cannot agree with the contention of the third-party defendant that the third-party plaintiff has alleged vicarious liability to which, as held by the Court of Appeals in Kelly v. Long Is. Light. Co. (31 N Y 2d 25) the active-passive dichotomy classically and appropriately belonged. This is not a case of alleged vicarious liability.

The Court of Appeals held in Kelly v. Long Is. Light. Co. (supra, p. 29): “Prior to our recent decision in Dole v. Bow Chem. Co. (30 N Y 2d 143), it had been held to be the rule that a defendant found guilty of active ’ negligence could not recover over against another guilty of active ’ tort negligence. The rule ,as stated in Bole now permits apportionment of damages among joint or concurrent tort-feasors regardless of the degree or nature of the concurring fault. We believe the new rule of apportionment to be pragmatically sound, as well as realistically fair.”

The motions of the third-party defendant are denied.  