| Phillips v Construction |
| 2012 NY Slip Op 09040 [101 AD3d 1097] |
| December 26, 2012 |
| Appellate Division, Second Department |
| Stephen Phillips et al., Respondents, v TrommelConstruction et al., Defendants, Schnabel Roofing et al., Respondents, and Utica First InsuranceCompany, Appellant. |
—[*1] Kral Clerkin Redmond Ryan Perry & Van Etten, LLP, Melville, N.Y. (Elizabeth GelfandKastner of counsel), for defendant-respondent Leak Stoppers, Inc.
In an action, inter alia, to recover damages for breach of contract, the defendant Utica FirstInsurance Company appeals, as limited by its reply brief, from stated portions of an order of theSupreme Court, Suffolk County (Gazzillo, J.), dated December 20, 2010, which, among otherthings, denied those branches of its motion which were, in effect, pursuant to CPLR 3211 (a) (7)to dismiss the complaint and the cross claims of the defendants Schnabel Roofing and LeakStoppers, Inc., insofar as asserted against it.
Ordered that the order is modified, on the law, by deleting the provision thereof denyingthose branches of the motion of the defendant Utica First Insurance Company which were, ineffect, pursuant to CPLR 3211 (a) (7) to dismiss the complaint and the cross claims of thedefendants Schnabel Roofing and Leak Stoppers, Inc., insofar as asserted against it, andsubstituting therefor a provision granting those branches of the motion; as so modified, the orderis affirmed insofar as appealed from, with one bill of costs to the defendant Utica First InsuranceCompany payable by the defendants Schnabel Roofing and Leak Stoppers, Inc.
The plaintiffs, the owners of an office building, hired the defendant Trommel Construction(hereinafter Trommel) to replace the building's roof. Trommel subcontracted with the defendantSchnabel Roofing (hereinafter Schnabel) to perform the work. Trommel and Schnabel did notperform the work to the plaintiffs' satisfaction. The plaintiffs subsequently hired Leak Stoppers,Inc. (hereinafter Leak Stoppers), to repair the alleged defects, but problems with the roofpersisted. As a result, the plaintiffs commenced this action against Trommel, Schnabel, and LeakStoppers alleging, among other things, breach of contract. In addition, the plaintiffs asserted acause of action against Utica First Insurance Company (hereinafter Utica First), the insurer of anonparty tenant at the subject building, seeking insurance coverage for the damages theyallegedly sustained as a result of the contractors' alleged faulty workmanship. Schnabel and LeakStoppers asserted cross claims against, among others, Utica First for contribution andcommon-law indemnification.[*2]
As Utica First correctly contends, the Supreme Courtshould not have denied that branch of its motion which was, in effect, to dismiss the complaintpursuant to CPLR 3211 (a) (7) as academic on the ground that the plaintiffs signed a voluntarystipulation of discontinuance. The stipulation was ineffective in the absence of it being "signedby the attorneys of record for all parties" (CPLR 3217 [a] [2]; see C. W. Brown, Inc. v HCE, Inc., 8 AD3d 520, 521 [2004]).
In considering a motion to dismiss pursuant to CPLR 3211 (a) (7), the facts pleaded arepresumed to be true, and the court must afford those allegations every favorable inference anddetermine only whether the facts as alleged fit within any cognizable legal theory (see Leon vMartinez, 84 NY2d 83, 87-88 [1994]; Dickinson v Igoni, 76 AD3d 943, 945 [2010]). However, "theallegations in the [pleading] cannot be vague and conclusory" (Stoianoff v Gahona, 248AD2d 525, 526 [1998], cert denied sub nom. Stoianoff v New York Times, 525 US 953[1998]; see Parola, Gross & Marino,P.C. v Susskind, 43 AD3d 1020, 1021 [2007]). Here, Utica First was entitled todismissal of the complaint insofar as asserted against it for failure to state a cause of action, asthe complaint fails to allege any wrongdoing by it. Since Utica was entitled to dismissal of thecomplaint insofar as asserted against it, the cross claims asserted against it by Schnabel and LeakStoppers, which were entirely predicated on the complaint, must be dismissed as well.
Utica First's remaining contention is without merit. Dickerson, J.P., Chambers, Austin andMiller, JJ., concur.