| Balkheimer v Spanton |
| 2013 NY Slip Op 00715 [103 AD3d 603] |
| February 6, 2013 |
| Appellate Division, Second Department |
| Peter Balkheimer et al., Plaintiffs, v DonaldSpanton et al., Defendants/Third-Party Plaintiffs-Respondents. Forchelli, Curto,Schwartz, Mineo, Carlino & Cohn LLP, et al., Third-PartyDefendants-Appellants. |
—[*1] Furman Kornfeld & Brennan LLP, Elmsford, N.Y. (R. Evon Idahosa and Andrew S.Kowlowitz of counsel), for defendants/third-party plaintiffs-respondents.
In an action to recover damages for legal malpractice, the third-party defendantsappeal from an order of the Supreme Court, Suffolk County (Tanenbaum, J.), datedDecember 9, 2011, which denied their motion pursuant to CPLR 3211 (a) (5) and (7) todismiss the third-party complaint.
Ordered that the order is reversed, on the law, with costs, and the motion of thethird-party defendants pursuant to CPLR 3211 (a) (5) and (7) to dismiss the third-partycomplaint is granted.
Pursuant to General Obligations Law § 15-108 (b), "[a] release given in goodfaith by the injured person to one tortfeasor as provided in [General Obligations Law§ 15-108 (a)] relieves him [or her] from liability to any other person forcontribution as provided in article fourteen of the civil practice law and rules." Here, theplaintiffs executed a general release in favor of the third-party defendants. There is noindication in the record that the release was not executed in good faith. Therefore,pursuant to General Obligations Law § 15-108 (b), the third-party defendants arerelieved from liability to the third-party plaintiffs for contribution (see Ziviello v O'Boyle, 90AD3d 916, 917 [2011]; Kagan v Jacobs, 260 AD2d 442 [1999]).Accordingly, the Supreme Court should have granted that branch of the motion of thethird-party defendants which was pursuant to CPLR 3211 (a) (5) to dismiss thecontribution cause of action in the third-party complaint as barred by the release.
In considering a motion to dismiss for failure to state a cause of action pursuant toCPLR 3211 (a) (7), the court must "accept the facts as alleged in the [pleading] as true,accord plaintiffs the benefit of every possible favorable inference, and determine onlywhether the facts as alleged fit within any cognizable legal theory" (Leon vMartinez, 84 NY2d 83, 87-88 [1994]). "[T]he key element of a common-law causeof action for indemnification is not a duty running from the indemnitor to the injuredparty, but rather is 'a separate duty owed the indemnitee by the [*2]indemnitor' " (Raquet v Braun, 90 NY2d 177, 183[1997], quoting Mas v Two Bridges Assoc., 75 NY2d 680, 690 [1990]; see Lovino, Inc. v Lavallee LawOffs., 96 AD3d 909, 909-910 [2012]).
Here, the third-party complaint does not allege the existence of any duty owed by thethird-party defendants to the third-party plaintiffs (see Raquet v Braun, 90 NY2dat 183; Breen v Law Off. ofBruce A. Barket, P.C., 52 AD3d 635, 638 [2008]; Keeley v Tracy, 301AD2d 502, 503 [2003]). Furthermore, the third-party plaintiffs would not be compelledto pay damages for the alleged negligent acts of the third-party defendants (seeLovino, Inc. v Lavallee Law Offs., 96 AD3d at 910; Jakobleff v Cerrato,Sweeney & Cohn, 97 AD2d 786, 786-787 [1983]). Accordingly, the Supreme Courtshould have granted that branch of the motion of the third-party defendants which waspursuant to CPLR 3211 (a) (7) to dismiss the common-law indemnification cause ofaction in the third-party complaint.
The third-party plaintiffs' remaining contention is without merit. Skelos, J.P., Hall,Roman and Cohen, JJ., concur.