| Esteva v Nash |
| 2008 NY Slip Op 08247 [55 AD3d 474] |
| October 30, 2008 |
| Appellate Division, First Department |
| Paul A. Esteva et al., Plaintiffs, v Kevin J. Nash, Esq., etal., Defendants. Kevin J. Nash, Esq., et al., Third-Party Plaintiffs-Appellants, v MichelleFerguson, Esq., et al., Third-Party Defendants, and Fundex Capital Corporation, Third-PartyDefendant-Respondent. |
—[*1] Robbins & Associates, P.C., New York (James A. Robbins of counsel), forrespondent.
Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered April 9, 2007,which, to the extent appealed from as limited by the briefs, granted the motion of third-partydefendants Greenwald and Fundex to dismiss the third-party complaint against them, and deniedthird-party plaintiffs' cross motion to file a proposed amended third-party complaint forcommon-law indemnification for the alleged aiding and abetting of a breach of fiduciary duty,unanimously affirmed, with costs.
As we have previously held, "A party sued solely for its own alleged wrongdoing, rather thanon a theory of vicarious liability, cannot assert a claim for common law indemnification"(Mathis v Central Park Conservancy, 251 AD2d 171, 172 [1998]). Here, the complaintdid not propound any theory that defendants were vicariously liable to plaintiffs by dint ofthird-party defendant Fundex's actions. As a result, defendants are not entitled to thecommon-law indemnification they seek in the third-party action (see Bleecker St. Health &Beauty Aids, Inc. v Granite State Ins. Co., 38 AD3d 231, 233 [2007]).
Furthermore, the court properly dismissed the contribution claim against Fundex for aidingand abetting a breach of fiduciary duty, and properly denied defendants' cross motion for leave toamend their third-party complaint. Indeed, neither the original third-party complaint nor theproposed amended version alleges any facts sufficient to suggest that Fundex provided [*2]substantial assistance to plaintiffs in their alleged breach offiduciary duty. The aiding-and-abetting claim must thus fail (see Global Mins. & MetalsCorp. v Holme, 35 AD3d 93, 101 [2006], lv denied 8 NY3d 804 [2007]).Concur—Lippman, P.J., Mazzarelli, Williams, Buckley and Renwick, JJ. [See2007 NY Slip Op 30584(U).]