| Galvin Bros., Inc. v Town of Babylon, N.Y. |
| 2012 NY Slip Op 00331 [91 AD3d 715] |
| Jnury 17, 2012 |
| Appellate Division, Second Department |
| Galvin Brothers, Inc., Plaintiff, v Town of Babylon, NewYork, Appellant, and Hanes Companies, Inc., Doing Business as Hanes Geo Components,Respondent. |
—[*1] L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Peter L. Contini of counsel),for respondent.
In an action, inter alia, to recover damages for breach of contract, the defendant Town ofBabylon, New York, appeals, as limited by its brief, from so much of an order of the SupremeCourt, Suffolk County (Emerson, J.), dated August 2, 2010, as granted that branch of the motionof the defendant Hanes Companies, Inc., doing business as Hanes Geo Components, which waspursuant to CPLR 3211 (a) (7) to dismiss the cross claims asserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly granted that branch of the motion of the defendant HanesCompanies, Inc., doing business as Hanes Geo Components (hereinafter Hanes), which waspursuant to CPLR 3211 (a) (7) to dismiss the cross claim for contribution asserted against it bythe defendant Town of Babylon, New York. The plaintiff in its complaint sought to recoverdamages from the Town based on breach of contract and in quantum meruit. "[P]urely economicloss resulting from a breach of contract does not constitute 'injury to property' within the meaningof New York's contribution statute [CPLR 1401]" (Board of Educ. of Hudson City SchoolDist. v Sargent, Webster, Crenshaw & Folley, 71 NY2d 21, 26 [1987]). Accordingly, underthe economic loss doctrine, "contribution under CPLR 1401 is not available where the damagessought . . . are exclusively for breach of contract" (Tower Bldg. Restoration v 20E. 9th St. Apt. Corp., 295 AD2d 229, 229 [2002]; see Sommer v Federal SignalCorp., 79 NY2d 540, 557 [1992]; Sound Refrig. & A.C., Inc. v All City Testing & Balancing Corp., 84AD3d 1349, 1350 [2011]; Structure-Tone, Inc. v Ignelzi Interiors, Inc., 40 AD3d 234,234-235 [2007]; Ruby Land Dev. vToussie, 4 AD3d 518 [2004]). "[T]he existence of some form of tort liability is aprerequisite to application of" CPLR 1401 (Board of Educ. of Hudson City School Dist. vSargent, Webster, Crenshaw & Folley, 71 NY2d at 28). Since the plaintiff seeks damages forpurely economic loss, the Supreme Court properly determined that the Town's cross claimagainst Hanes for contribution should be dismissed (see Structure Tone, Inc. v Universal Servs. Group, Ltd., 87 AD3d909, 911 [2011]; Wecker v Quaderer, 237 AD2d 512 [1997]).
The Supreme Court also correctly granted that branch of Hanes's motion which was [*2]pursuant to CPLR 3211 (a) (7) to dismiss the Town's cross claimagainst Hanes for contractual indemnification. No contractual relationship existed between theTown and Hanes, and the Town failed to set forth sufficient allegations that it was an intendedthird-party beneficiary of the contract between the plaintiff and Hanes (see Griffin v DaVinci Dev., LLC, 44AD3d 1001, 1003 [2007]; SuperiorIce Rink, Inc. v Nescon Contr. Corp., 40 AD3d 963 [2007]). Rivera, J.P., Balkin, Engand Austin, JJ., concur.