| Richards Plumbing & Heating Co., Inc. v Washington Group Intl.,Inc. |
| 2009 NY Slip Op 01359 [59 AD3d 311] |
| February 24, 2009 |
| Appellate Division, First Department |
| Richards Plumbing & Heating Co., Inc.,Plaintiff, v Washington Group International, Inc., et al., Defendants. Washington GroupInternational, Inc., Third-Party Plaintiff-Appellant, v Office for Architecture, Planning, Design,P.C., et al., Third-Party Defendants-Respondents. |
—[*1] Milber Makris Plousadis & Seiden, LLP, Woodbury (Patrick F. Palladino of counsel), forrespondents.
Order, Supreme Court, Bronx County (Dianne T. Renwick, J.), entered on or about October29, 2007, which granted third-party defendants' motion to dismiss the third-party complaint,unanimously affirmed, without costs.
This action arises out of a dispute concerning construction of a retirement facility owned bydefendant the Home for the Aged for the Little Sisters of the Poor of the City of New York(owner). Pursuant to separate contracts with the owner, third-party plaintiff was the constructionmanager on the project and third-party defendants were the architect.
Plaintiff subcontractor brought an action against the construction manager and owneralleging nonpayment for work performed, and the owner asserted cross claims against theconstruction manager for breach of contract, consisting, inter alia, of failing to provide strictoversight and causing delays on the project. The construction manager then brought a third-partyaction against the architect asserting claims for common-law indemnification and contributionbased on the architect's alleged failure to properly perform its work and obtain the necessarypermits and approvals for the project, resulting in delays and increased costs.
The court properly dismissed the construction manager's third-party claim for common-lawindemnification since plaintiff's claims and the owner's cross claims allege breach of contract bythe construction manager, not vicarious liability attributed solely to the fault of the architect(see Trustees of Columbia Univ. v Mitchell/Giurgola Assoc., 109 AD2d 449, 453[*2][1985] ["(s)ince the predicate of common-law indemnity isvicarious liability without actual fault on the part of the proposed indemnitee, it follows that aparty who has itself actually participated to some degree in the wrongdoing cannot receive thebenefit of the doctrine"]). Although the construction manager argues that it was entitled toindemnity because its relationship with the architect was so close as to approach that of privity(see e.g. Ossining Union Free School Dist. v Anderson LaRocca Anderson, 73 NY2d417 [1989]), indemnification has been imposed on this basis only where negligentmisrepresentation or similar torts were alleged. The construction manager has provided noauthority to support its claim for indemnity in the context of a breach of contract action and thethird-party complaint does not allege negligent misrepresentation by the architect.
The third-party claim for contribution also fails because the claims against the constructionmanager are based on alleged breaches of contract. While two or more entities that "are subjectto liability for damages for the same personal injury, injury to property or wrongful death, mayclaim contribution" from the other (CPLR 1401), a purely economic loss resulting from a breachof contract does not constitute an "injury to property" within the meaning of CPLR 1401 (seeBoard of Educ. of Hudson City School Dist. v Sargent, Webster, Crenshaw & Folley, 71NY2d 21, 26 [1987]). Concur—Tom, J.P., Andrias, Nardelli, Buckley and DeGrasse, JJ.