| Blank Rome, LLP v Parrish |
| 2012 NY Slip Op 00820 [92 AD3d 444] |
| February 7, 2012 |
| Appellate Division, First Department |
| Blank Rome, LLP, Respondent/Third-PartyPlaintiff-Respondent, v Karl L. Parrish, Respondent. Bouchard Margules & Friedlander,P.A., et al., Third-Party Defendants-Appellants. |
—[*1] Hinshaw & Culbertson, LLP, New York (Elizabeth K. Devine of counsel), for Blank Rome,LLP, respondent. Osborn Law, P.C., New York (Daniel A. Osborn of counsel), for Karl L. Parrish,respondent.
Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered on or about March25, 2011, which, in an action to recover unpaid legal fees, denied the motion of third-partydefendants Bouchard Margules & Friedlander, P.A. and David Margules (collectively BMF) todismiss the third-party complaint for indemnification and contribution, and grantedplaintiff/third-party plaintiff Blank Rome LLP leave to amend the third-party complaint,unanimously modified, on the law, to dismiss Blank Rome, LLP's cause of action forindemnification and to allow amendment of the third-party complaint to the extent of assertingadditional allegations in furtherance of its cause of action for contribution, and otherwiseaffirmed, without costs.
Insofar as the third-party and proposed amended third-party complaints allege that BMFrepresented defendant, agreed to represent him with respect to the issues giving rise to the legalmalpractice alleged in defendant's counterclaims, and that BMF was negligent with respect tosuch representation, the motion court properly declined to dismiss Blank Rome's third-partyclaims for contribution since this cause of action was sufficiently pleaded (see Schauer vJoyce, 54 NY2d 1, 5 [1981] ["two or more persons who are subject to liability for damagesfor the same personal injury, injury to property or wrongful death, may claim contribution amongthem"] [internal quotation marks omitted]). However, the motion court erred when it deniedBMF's [*2]motion to the extent it sought to dismiss thethird-party cause of action for indemnification. In order to recover on a claim for common lawindemnification, "the one seeking indemnity must prove not only that it was not guilty of anynegligence beyond the statutory liability but must also prove that the proposed indemnitor wasguilty of some negligence that contributed to the causation of the accident for which theindemnitee was held liable to the injured party by virtue of some obligation imposed by law"(Correia v Professional Data Mgt., 259 AD2d 60, 65 [1999]). Here, insofar as neither thethird-party nor proposed amended third-party complaint assert that Blank Rome, LLP's liability issolely statutory and not based upon its own negligence, they fail to state a cause of action forcommon law indemnification. Blank Rome also fails to state a cause of action for contractualindemnification since "[a] party is entitled to full contractual indemnification provided that theintention to indemnify can be clearly implied from the language and purposes of the entireagreement and the surrounding facts and circumstances" (Drzewinski v Atlantic Scaffold &Ladder Co., 70 NY2d 774, 777 [1987] [internal quotation marks omitted]; Masciotta vMorse Diesel Intl., 303 AD2d 309, 310 [2003]). Here, neither the third-party nor theproposed amended third-party complaint identifies any agreement, let alone alleges that BMFever agreed to indemnify Blank Rome, LLP for any legal malpractice committed in the course ofits representation of the defendant.
With respect to Blank Rome, LLP's cause of action for contribution, since the allegationswithin the proposed amended third-party complaint have merit and there has been no showing ofprejudice, the motion court providently exercised its discretion in granting leave to amend thethird-party complaint (see Board ofMgrs. of 60 Greene Condominium v Acacia SoHo, LLC, 63 AD3d 516, 517 [2009]).
We have considered BMF's remaining contentions and find them unavailing.Concur—Mazzarelli, J.P., Andrias, Saxe, Freedman and RomÁn, JJ. [Prior CaseHistory: 2011 NY Slip Op 30712(U).]