| Westbank Contr., Inc. v Rondout Val. Cent. School Dist. |
| 2007 NY Slip Op 10011 [46 AD3d 1187] |
| December 20, 2007 |
| Appellate Division, Third Department |
| Westbank Contracting, Inc., Plaintiff, v Rondout Valley CentralSchool District, Defendant, and Sear-Brown Group et al., Defendants and Third-PartyPlaintiffs-Appellants. James B. Slavetskas, P.E., et al., Third-PartyDefendants-Respondents. |
—[*1] Milber, Makris, Plousadis & Seiden, L.L.P., White Plains (Thomas H. Kukowski of counsel),for James B. Slavetskas, P.E., and another, third-party defendants-respondents. Ernstrom & Dreste, L.L.P., Rochester (Shannon L. Slavin of counsel), for ChristaConstruction, third-party defendant-respondent. Robert S. McEwan Jr., Schenectady, for Boston Edison and others, third-partydefendants-respondents.
Lahtinen, J. Appeal from an order of the Supreme Court (Ceresia, Jr., J.), entered January 23,2007 in Ulster County, which granted third-party defendants' motions to dismiss the third-partycomplaint.
This litigation arises out of an extensive renovation project on various facilities in defendantRondout Valley Central School District conducted in phases over several years. Plaintiff, acontractor on the project, commenced an action against Rondout and Sear-Brown Group (theproject's architectural firm). Rondout and Sear-Brown asserted cross claims, which continuedafter the underlying action settled for about $190,000. Rondout's allegations in an ensuingamended pleading against Sear-Brown and Stantec Consulting Services, Inc., the successor ininterest to Sear-Brown (hereinafter jointly referred to as Sear-Brown), included negligence andbreach of contract. Sear-Brown started a third-party action seeking indemnification andcontribution against James B. Slavetskas, P.E., Coneco, Boston Energy Technology Group (adissolved corporation improperly named by Sear-Brown as Boston Edison Technology Group),Boston Edison, Abacus Engineered Systems, Inc., and Christa Construction. The third-partydefendants moved to dismiss for failure to state a cause of action (see CPLR 3211 [a][7]). In a detailed written decision, Supreme Court granted the motions and dismissed thethird-party action. Sear-Brown appeals.
In the current procedural context, the pleadings are liberally construed, allegations in thethird-party complaint accepted as true, and the third-party plaintiff provided the benefit of everypossible inference (see EBC I, Inc. vGoldman, Sachs & Co., 5 NY3d 11, 19 [2005]; Team Mktg. USA Corp. v Power Pact, LLC, 41 AD3d 939, 940[2007]). Although Sear-Brown's third-party complaint was devoid of factual allegations,Supreme Court correctly noted that this omission was not necessarily fatal since " 'a court mayfreely consider affidavits submitted by the plaintiff to remedy any defects in the complaint' "(Team Mktg. USA Corp. v Power Pact, LLC, 41 AD3d at 940, quoting Leon vMartinez, 84 NY2d 83, 88 [1994]). Counsel for Sear-Brown submitted an affirmation settingforth not only his client's legal arguments but also referencing documents and other proof heasserted precluded summary dismissal of the third-party action. Unlike the typical situation in amotion to dismiss under CPLR 3211 (a) (7), where generally no disclosure has occurred, here,the main action had already generated examinations before trial of several individuals, includingJames Slavetskas, and transcripts from such disclosure were among the documents included inthe voluminous record.
We turn to whether Sear-Brown set forth sufficient allegations to establish a viable claim forindemnification. The right to indemnification "arises out of a contract which may be express ormay be implied in law to prevent a result which is regarded as unjust or unsatisfactory"(Rosado v Proctor & Schwartz, 66 NY2d 21, 24 [1985] [internal quotation marks andcitations omitted]; see McDermott v City of New York, 50 NY2d 211, 216 [1980]). Asamply explained by Supreme Court, Sear-Brown's effort to extrapolate an expressindemnification agreement from the various agreements between these sophisticated parties isnot supported by the specific and detailed language set forth in those agreements.
Implied indemnification is based in simple fairness and seeks to avoid unjust enrichment by"recogniz[ing] that [a] person who, in whole or in part, has discharged a duty which is owed byhim but which as between himself and another should have been discharged by the other, isentitled to indemnity" (McDermott v City of New York, 50 NY2d at 217 [internalquotation marks and citation omitted]; see State of New York v Stewart's Ice Cream Co.,64 NY2d 83, 88 [1984]; HANYS Servs. v Empire Blue Cross & Blue Shield, 292 AD2d61, 66 n[*2][2002], lv denied 98 NY2d 612 [2002]).Stated another way, "[o]ne is entitled to implied indemnification where he or she has committedno wrong but is held vicariously liable for the wrongdoing of another" (Kozerski v Deer RunHomeowners Assn., 217 AD2d 841, 843 [1995]; see Finch, Pruyn & Co. v WilsonControl Servs., 239 AD2d 814, 818 [1997]). Here, Rondout's allegations against Sear-Browninvolve acts or omissions by Sear-Brown. Those allegations include, among others, that thearchitectural services were substandard and that Sear-Brown overbilled for services provided.Implied indemnification between Sear-Brown and third-party defendants is not a viable theory onthese facts (see Jackson v Dow Chem. Co., 295 AD2d 855, 856 [2002]; Board ofEduc. of Hudson City School Dist. v Sargent, Webster, Crenshaw & Folley, 146 AD2d 190,199-200 [1989], lv denied 75 NY2d 702 [1989]).
Next, we consider Sear-Brown's claims for contribution from third-party defendants. "It iswell settled that a defendant may not seek contribution from other defendants where the alleged'tort' is essentially a breach of contract" (Tempforce, Inc. v Municipal Hous. Auth. of City ofSchenectady, 222 AD2d 778, 779 [1995], lv denied 87 NY2d 811 [1996] [citationsomitted]; see Board of Educ. of Hudson City School Dist. v Sargent, Webster, Crenshaw &Folley, 71 NY2d 21, 26-28 [1987]). " '[T]he determining factor as to the availability ofcontribution is not the theory behind the underlying claim but the measure of damages sought' "(Rothberg v Reichelt, 270 AD2d 760, 762 [2000], quoting Rockefeller Univ. vTishman Constr. Corp. of N.Y., 240 AD2d 341, 343 [1997], lv denied 91 NY2d 803[1997]). While Rondout employs language asserting negligence in some of its causes of actionagainst Sear-Brown, the damages it seeks (i.e., costs for repairs, completing work and delays inopening schools) are for economic loss and, accordingly, Supreme Court properly concluded thatcontribution was inapplicable (see Rothberg v Reichelt, 270 AD2d at 762-763;Wecker v Quaderer, 237 AD2d 512, 513 [1997]; see also Clark-Fitzpatrick, Inc. vLong Is. R.R. Co., 70 NY2d 382, 390 [1987]).
The remaining arguments have been considered and found unavailing.
Mercure, J.P., Mugglin, Rose and Kane, JJ., concur. Ordered that the order is affirmed, withone bill of costs.