| Ruiz v Griffin |
| 2008 NY Slip Op 03626 [50 AD3d 1007] |
| April 22, 2008 |
| Appellate Division, Second Department |
| Jose Ruiz, Appellant, v Kevin Griffin et al., Defendants,and Old Navy, Inc., Defendant and Third-Party Plaintiff-Appellant. Crystal Run Company, L.P.,Third-Party Defendant-Respondent. |
—[*1] McAndrew, Conboy & Prisco, Woodbury, N.Y. (Mary C. Azzaretto of counsel), fordefendant third-party plaintiff-appellant. Cerussi & Spring, P.C., White Plains, N.Y. (Richard D. Bentzen of counsel), for defendantthird-party defendant-respondent.
In an action, inter alia, to recover damages for wrongful death, (1) the plaintiff appeals, aslimited by his brief, from so much of an order of the Supreme Court, Orange County (Slobod, J.),dated November 27, 2006, as granted that branch of the motion of the third-party defendantCrystal Run Company, L.P., which was to dismiss the supplemental summons and amendedverified complaint insofar as asserted against it, and the defendant third-party plaintiff Old Navy,Inc., separately appeals, as limited by its brief, from so much of the same order as, in effect,granted that branch of the motion of the third-party defendant which was to dismiss thethird-party complaint, (2) the plaintiff and the defendant third-party plaintiff Old Navy, Inc.,separately appeal, as limited by their respective briefs, from so much of an order of the samecourt, dated April 5, 2007, as, upon granting their respective motions for reargument, adhered tothe respective determinations in the order dated November 27, 2006, and (3) the plaintiff appeals,as [*2]limited by his brief, from so much of an order of the samecourt, dated May 23, 2007, as, upon reargument, adhered to so much of the determination in theorder dated November 27, 2006, as granted that branch of the motion of the third-party defendantCrystal Run Company, L.P., which was to dismiss the supplemental summons and amendedverified complaint insofar as asserted against it.
Ordered that the appeals from the order dated November 27, 2006 are dismissed, as thatorder was superseded by the order dated April 5, 2007, made upon reargument; and it is further,
Ordered that the appeal by the plaintiff from so much of the order dated April 5, 2007, as,upon reargument, adhered to that portion of the order dated November 27, 2006, granting thatbranch of the motion of the third-party defendant Crystal Run Company, L.P., which was todismiss the supplemental summons and amended verified complaint insofar as asserted against itis dismissed, as that portion of the order appealed from was superseded by the order dated May23, 2007, made upon reargument; and it is further,
Ordered that the order dated April 5, 2007 is modified, on the law, by deleting the provisionthereof which, upon reargument, adhered to so much of the order dated November 27, 2006, as,in effect, granted that branch of the motion of the third-party defendant Crystal Run Company,L.P., which was to dismiss the first and second causes of action in the third-party complaint andsubstituting therefor a provision, upon reargument, vacating so much of the order datedNovember 27, 2006, as granted that branch of the motion and thereupon denying that branch ofthe motion; as so modified, the order dated April 5, 2007 is affirmed insofar as appealed from bythe third-party plaintiff Old Navy, Inc.; and it is further,
Ordered that the order dated May 23, 2007 is reversed insofar as appealed from, uponreargument, so much of the order dated November 27, 2006, as granted that branch of the motionof the third-party defendant Crystal Run Company, L.P., which was to dismiss the supplementalsummons and verified amended complaint insofar as asserted against it is vacated, that branch ofthe motion is denied, and the order dated April 5, 2007 is modified accordingly; and it is further,
Ordered that one bill of costs is awarded to the appellants payable by the respondent.
The Supreme Court erred in granting that branch of the motion of the third-party defendantCrystal Run Company, L.P. (hereinafter Crystal Run), which was to dismiss the plaintiff'ssupplemental summons and amended verified complaint insofar as asserted against it. Sincejurisdiction had been obtained over Crystal Run by virtue of the commencement of thethird-party action by Old Navy, Inc. (hereinafter Old Navy), and Crystal Run's failure to assertany objection to jurisdiction in its answer (see CPLR 1009, 2103 [b]; Doyle v HappyTumbler Wash-O-Mat, 113 AD2d 818, 820-821 [1985]), the plaintiff was not obligated toserve a supplemental summons with the amended verified complaint (see Patrician PlasticCorp. v Bernadel Realty Corp., 25 NY2d 599, 607 [1970]; Micari v Van Kesteren,121 AD2d 524, 524-525 [1986]; seealso Guarino v 233 E. 69th St. Owners Corp., 14 AD3d 652, 653 [2005]; Doyle vHappy Tumbler Wash-O-Mat, 113 AD2d at 820-821). Since there is no dispute that theamended verified complaint was timely (see CPLR 1009), the plaintiff's direct actionagainst Crystal Run was properly commenced (see Guarino v 233 E. 69th St. Owners Corp.,14 AD3d at 653; Harlem Riv. Consumers Coop. v Manufacturers Hanover Trust Co.,68 Misc 2d 608, 609 [1972]).[*3]
The Supreme Court properly dismissed the third cause ofaction in Old Navy's third-party complaint for contractual indemnification on the ground that theterms of the parties' lease contained no express provision (see Morales v 569 Myrtle Ave., LLC, 17 AD3d 418, 420 [2005];Scally v Regional Indus. Partnership,9 AD3d 865, 869 [2004]; Aiello v Rockmor Elec. Enters., 255 AD2d 470, 472[1998]). Further, Old Navy cannot seek common-law indemnification from Crystal Run becauseits loss-prevention agents participated to some degree in the injury and its liability is not purelyvicarious (see Tulley v Straus, 265 AD2d 399, 401 [1999]; Kagan v Jacobs, 260AD2d 442, 442-443 [1999]). Similarly, the Supreme Court properly dismissed the fourth causeof action in Old Navy's third-party complaint. The parties' lease required Old Navy to procureliability insurance naming Crystal Run as an additional insured, but not the converse (see Empire Ins. Co. v Insurance Corp. ofN.Y., 40 AD3d 686, 688 [2007]; Trapani v 10 Arial Way Assoc., 301 AD2d644, 647 [2003]; cf. Chaehee Jung vKum Gang, Inc., 22 AD3d 441, 443 [2005]; Taylor v Gannett Co., 303 AD2d397 [2003]).
However, the Supreme Court erred in granting that branch of Crystal Run's motion whichwas to dismiss the third-party complaint in its entirety. The third-party complaint set forth aclaim for common-law contribution arising out of Crystal Run's duty to maintain the commonarea, which included the parking lot where the plaintiff's decedent suffered fatal injuries (seeSutherland v Hallen Constr. Co., 183 AD2d 887, 890 [1992]). Further, contrary to theholding of the Supreme Court, a claim for contribution, whether asserted in a third-partycomplaint or a separate action, accrues at the time of payment of the underlying claim (seeBay Ridge Air Rights v State of New York, 44 NY2d 49 [1978]; Blum v Good HumorCorp., 57 AD2d 911 [1977]; CPLR 1401) and is subject to a six-year limitations period,which had not run (see CPLR 213). Consequently, Crystal Run was not entitled todismissal of the third-party complaint in its entirety. Spolzino, J.P., Santucci, Angiolillo andCarni, JJ., concur.