| Lovino, Inc. v Lavallee Law Offs. |
| 2012 NY Slip Op 04977 [96 AD3d 909] |
| June 20, 2012 |
| Appellate Division, Second Department |
| Lovino, Inc., Doing Business as Bodyline Collision, et al.,Plaintiffs, v Lavallee Law Offices et al., Defendants/Third-Party Plaintiffs-Respondents.Robert Tassinari, Third-Party Defendant-Appellant. |
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Traub Lieberman Straus & Shrewsberry LLP, Hawthorne, N.Y. (Lisa L. Shrewsberry andChristopher Russo of counsel), for defendants/third-party plaintiffs-respondents.
In an action to recover damages for legal malpractice, the third-party defendant appeals from(1) a decision of the Supreme Court, Nassau County (Feinman, J.), entered April 27, 2011, and(2), as limited by his brief, from so much of an order of the same court entered June 13, 2011, as,upon the decision, denied that branch of his motion which was to dismiss the third-partycomplaint pursuant to CPLR 3211 (a) (7).
Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision(see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509 [1984]); and it is further,
Ordered that the order is reversed insofar as appealed from, on the law, and that branch of themotion which was to dismiss the third-party complaint pursuant to CPLR 3211 (a) (7) is granted;and it is further,
Ordered that one bill of costs is awarded to the third-party defendant.
In considering a motion to dismiss for failure to state a cause of action pursuant to CPLR3211 (a) (7), the court must "accept the facts as alleged in the complaint as true, accord plaintiffsthe benefit of every possible favorable inference, and determine only whether the facts as allegedfit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see Sokol v Leader, 74 AD3d1180, 1180-1181 [2010]). Here, the defendants/third-party plaintiffs asserted a single causeof action to recover from the third-party defendant any sum which the plaintiffs may recoveragainst them in the main action on the theory of common-law indemnification. "[T]he keyelement of a common-law cause of action for indemnification is not a duty running from theindemnitor to the injured party, but rather is 'a separate duty owed the indemnitee by theindemnitor' " (Raquet v Braun, 90 NY2d 177, 183 [1997], quoting Mas v TwoBridges Assoc., 75 NY2d 680, 690 [1990]). Indemnity "may [*2]be based upon an express contract, but more commonly theindemnity obligation is implied . . . based upon the law's notion of what is fair andproper as between the parties" (Mas v Two Bridges Assoc., 75 NY2d at 690).
According to the allegations in the third-party complaint, the defendants/third-party plaintiffsare attorneys being sued in the main action to recover damages for legal malpractice based upontheir own negligence, which allegedly resulted in the loss of their client's legal rights (seeLovino, Inc. v Lavallee Law Offs., 96 AD3d 9029 [2012] [decided herewith]). While thedefendants/third-party plaintiffs and the third-party defendant both allegedly violated duties tothe plaintiffs in the main action, they did not violate the same duty or share responsibility for thesame injury, and the defendants/third-party plaintiffs are not being compelled to pay damages forthe wrongful act of the third-party defendant (see Jakobleff v Cerrato, Sweeney & Cohn,97 AD2d 786, 786-787 [1983]). Accordingly, the Supreme Court should have granted thatbranch of the motion which was to dismiss the third-party complaint on the ground that it failedto state a cause of action for common-law indemnification (id.). Angiolillo, J.P., Eng,Lott and Austin, JJ., concur.