| Soodoo v LC, LLC |
| 2014 NY Slip Op 02924 [116 AD3d 1033] |
| April 30, 2014 |
| Appellate Division, Second Department |
| Dharminder Soodoo, Respondent, v LC, LLC, et al.,Appellants, and Atlantic Contracting of New York, Inc.,Respondent. |
—[*1] Morris Duffy Alonso & Faley, New York, N.Y. (Anna J. Ervolina of counsel), fordefendant-respondent.
In an action to recover damages for personal injuries, the defendants LC, LLC, andLimrink Realty Corp. appeal, as limited by their brief, from so much of an order of theSupreme Court, Kings County (Vaughan, J.), dated January 30, 2013, as granted thatbranch of the motion of the defendant Atlantic Contracting of New York, Inc., whichwas pursuant to CPLR 3211 (a) (7) to dismiss the cross claims asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,that branch of the motion of the defendant Atlantic Contracting of New York, Inc.,which was pursuant to CPLR 3211 (a) (7) to dismiss the cross claims asserted against itis denied, and the cross claims are converted into third-party causes of action.
The plaintiff commenced this action against the defendants LC, LLC, and LimrinkRealty Corp. (hereinafter together the appellants) and the defendant Atlantic Contractingof New York, Inc. (hereinafter Atlantic), to recover damages for personal injuriesallegedly sustained while he was employed at a construction site. The appellants assertedcross claims against Atlantic for contribution, indemnification, and breach of contract.
Atlantic moved, inter alia, pursuant to CPLR 3211 (a) (7) to dismiss the appellants'cross claims on the ground that they failed to state causes of action. The Supreme Court,among other things, granted that branch of Atlantic's motion.
On a motion to dismiss a pleading pursuant to CPLR 3211 (a) (7) for failure to statea cause of action, the court must afford the pleading a liberal construction, accept allfacts as alleged in the pleading to be true, accord the nonmoving party the benefit ofevery possible inference, and determine only whether the facts as alleged fit within anycognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87 [1994]; Breytman v Olinville Realty,LLC, 54 AD3d 703, 703-704 [2008]). "Whether the [pleading] will later survivea motion for summary judgment, or whether the [non-moving party] will ultimately beable to prove its claims, of course, plays no part in the determination of a prediscoveryCPLR 3211 motion to dismiss" (Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, [*2]Edelman & Dicker, LLP, 38 AD3d 34, 38 [2006];see EBC I, Inc. v Goldman,Sachs & Co., 5 NY3d 11, 19 [2005]).
Here, affording the pleading a liberal construction and according the appellants thebenefit of every favorable inference, the first cross claim states a cognizable cause ofaction against Atlantic for contribution and indemnification (see Cueto v Hamilton Plaza Co.,Inc., 67 AD3d 722, 723 [2009]; Wilt v Brunswick Plaza, 281 AD2d840, 841 [2001]; see also Workers' Compensation Law § 11; Bovis v Crab Meadow Enters.,Ltd., 67 AD3d 846, 847-848 [2009]; 405 Bedford Ave. Dev. Corp. v New Metro Constr., Ltd., 26AD3d 408, 409 [2006]; Fischer v Waldbaum's, Inc., 7 AD3d 756, 756 [2004];Potter v M.A. Bongiovanni, Inc., 271 AD2d 918, 919 [2000]; see generally Guayara v Harry I.Katz, P.C., 83 AD3d 661, 663 [2011]; Noble v Bronxville Union Free School Dist., 45 AD3d548, 549 [2007]). Furthermore, the second cross claim states a cognizable cause ofaction against Atlantic for breach of contract to procure insurance (see Kinney v LiskCo., 76 NY2d 215, 219 [1990]; Roldan v New York Univ., 81 AD3d 625, 628 [2011]).Accordingly, the Supreme Court should have denied that branch of Atlantic's motionwhich was to dismiss the appellants' cross claims.
As the appellants correctly contend, although there is no longer a direct actionpending against Atlantic, the appellants' cross claims may be maintained in a third-partyaction under the circumstances of this case (see Baten v Northfork Bancorporation, Inc., 85 AD3d 697,698-699 [2011]; Nelson vChelsea GCA Realty, Inc., 18 AD3d 838, 839 [2005]). Accordingly, we convertthe appellants' cross claims into third-party causes of action. Balkin, J.P., Dickerson,Roman and Miller, JJ., concur.