| Watson v Newell Indus., Inc. |
| 2009 NY Slip Op 08215 [67 AD3d 780] |
| November 10, 2009 |
| Appellate Division, Second Department |
| Jerry Watson, Appellant, v Newell Industries, Inc.,Defendant/Third-Party Plaintiff-Respondent, et al., Defendants. Red Hook RecyclingCorporation, Third-Party Defendant-Respondent. |
—[*1] Garbarini & Scher, P.C., New York, N.Y. (William D. Buckley of counsel), for defendant/third-party plaintiff-respondent. Morris, Duffy, Alonso & Faley, New York, N.Y. (Pauline E. Glaser, Andrea M. Alonso, andAnna J. Ervolina of counsel), for third-party defendant-respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Knipel, J.), dated February 25, 2008, which granted themotion of the defendant Newell Industries, Inc., for summary judgment dismissing the complaintand all cross claims insofar as asserted against it.
Ordered that the appeal from so much of the order as granted that branch of the motion of thedefendant Newell Industries, Inc., which was for summary judgment dismissing all cross claimsinsofar as asserted against it is dismissed, as the appellant is not aggrieved by that portion of theorder (see CPLR 5511), and it is further,
Ordered that the order is affirmed insofar as reviewed; and it is further,[*2]
Ordered that one bill of costs is awarded to therespondents.
The Supreme Court, inter alia, granted that branch of the motion of the defendant NewellIndustries, Inc. (hereinafter Newell), which was for summary judgment dismissing the complaintinsofar as asserted against it on the ground that Newell, a foreign corporation, had becomedefunct at the conclusion of a chapter 7 bankruptcy proceeding (11 USC § 701 et.seq.), and the plaintiff had not filed a claim against Newell's bankruptcy estate prior to theliquidation of its assets.
On appeal, the plaintiff concedes that he cannot recover against Newell because it is defunct,but argues that the Supreme Court should have permitted his action against Newell to continueso that liability could be apportioned in a third-party action asserted by Newell against Red HookRecycling Corporation (hereinafter Red Hook). However, the indemnification and contributionclaims asserted in the third-party complaint arise from Newell's potential liability to the plaintiffin the main action. Since the plaintiff cannot recover against Newell in the main action, there isno basis upon which Newell may obtain indemnification or contribution from Red Hook (see generally Stagno v 143-50 HooverOwners Corp., 48 AD3d 548, 549-550 [2008]; Beneficial Natl. Life Co. vSmall, 184 AD2d 241, 242 [1992]; Ulysse v Nelsk Taxi, 135 AD2d 528, 530[1987]).
Accordingly, the Supreme Court properly granted that branch of Newell's motion which wasfor summary judgment dismissing the complaint insofar as asserted against it. Rivera, J.P., Eng,Chambers and Hall, JJ., concur.