| Sound Refrig. & A.C., Inc. v All City Testing & BalancingCorp. |
| 2011 NY Slip Op 04656 [84 AD3d 1349] |
| May 31, 2011 |
| Appellate Division, Second Department |
| Sound Refrigeration and Air Conditioning, Inc.,Respondent, v All City Testing & Balancing Corp., Defendant/Third-PartyPlaintiff/Third Third-Party Plaintiff-Appellant, et al., Defendant. Telelabs Inc. et al., Third-PartyDefendant; Professional Teleconcepts, Inc., Second Third-Party Defendant/Third Third-PartyDefendant-Respondent. |
—[*1] Clyde & Co. US LLP, New York, N.Y. (Matthew W. Bauer and James C. Haynie ofcounsel), for second third-party defendant/third third-party defendant-respondent.
In an action, inter alia, to recover damages for injury to property, the appeal is from an orderof the Supreme Court, Nassau County (Cozzens, Jr., J.), dated January 14, 2010, which grantedthe motion of the third third-party defendant to dismiss the third third-party complaint on theground that contribution is barred by the economic loss doctrine.
Ordered that the order is reversed, on the law, with costs, and the motion to dismiss the thirdthird-party complaint on the ground that contribution is barred by the economic loss doctrine isdenied.
"[P]urely economic loss resulting from a breach of contract does not constitute 'injury toproperty' within the meaning of New York's contribution statute [CPLR 1401 ]" (Board ofEduc. of Hudson City School Dist. v Sargent, Webster, Crenshaw & Folley, 71 NY2d 21, 26[1987]). Accordingly, under the so-called "economic loss doctrine," "contribution under CPLR1401 is not available where the damages sought . . . are exclusively for breach ofcontract" (Tower Bldg. Restoration v 20 E. 9th St. Apt. Corp., 295 AD2d 229, 229[2002]; see Sommer v Federal Signal Corp., 79 NY2d 540, 557 [1992];Structure-Tone, Inc. v Ignelzi Interiors, Inc., 40 AD3d 234, 234-235 [2007]; RubyLand Dev. v Toussie, 4 AD3d 518, 519 [2004]). "[T]he existence of some form of tortliability is a prerequisite to application of" CPLR 1401 (Board of Educ. of Hudson CitySchool Dist. v Sargent, Webster, Crenshaw & Folley, 71 NY2d at 28).
Here, contrary to the Supreme Court's determination, a cause of action for contribution is notbarred by the economic loss doctrine. While the plaintiff in the main action did assert, inter alia,a cause of action to recover damages for breach of contract against the defendant/third-partyplaintiff/third third-party plaintiff All City Testing & Balancing Corp. (hereinafter All City), thiswas but one of several causes of action in the complaint. The plaintiff also asserted against AllCity a cause of action to recover [*2]damages for negligencebased on All City's alleged conduct in causing injury to property through the negligentperformance of its work. Although it is possible that All City ultimately may not be held liable intort, at present a tort claim remains pending, "and, thus, 'the necessary predicate tort liability for acontribution action remains in the case' " (Tower Bldg. Restoration v 20 E. 9th St. Apt.Corp., 295 AD2d at 230, quoting St. Patrick's Home for Aged & Infirm v LaticreteIntl., 264 AD2d 652, 658 [1999]). Accordingly, the Supreme Court erred in granting themotion of the third third-party defendant to dismiss the third third-party complaint on the groundthat contribution is barred by the economic loss doctrine. Angiolillo, J.P., Dickerson, Belen andSgroi, JJ., concur.