Opinion
December 4, 1995
Appeal from the Supreme Court, Nassau County (O'Brien, J.).
Ordered that the appeal from the order dated July 26, 1994, is dismissed, as that order was superseded by the order dated November 2, 1994, made upon reargument; and it is further,
Ordered that the order dated November 2, 1994, is affirmed insofar as appealed from; and it is further,
Ordered that the respondents are awarded one bill of costs.
When a person is subject to liability for damages for the same personal injury, injury to property, or wrongful death as a defendant, based on either breach of a duty owed directly to the plaintiff or breach of some duty owed to the defendant, contribution may be sought (see, CPLR 1401; Nassau Roofing Sheet Metal Co. v Facilities Dev. Corp., 71 N.Y.2d 599, 603; Guzman v Haven Plaza Hous. Dev. Fund Co., 69 N.Y.2d 559, 568; Garrett v Holiday Inns, 58 N.Y.2d 253, 258; 2A Weinstein-Korn-Miller, N Y Civ Prac ¶¶ 1401.10a, 1401.10b). In this case, the issue is whether the third-party defendants breached a duty of care owed to the decedent.
Accepting the truth of the defendants' allegations against the third-party defendants (see, Citibank v Dutka, 74 A.D.2d 520), there are clear issues of fact as to whether the third-party defendants breached a duty of care owed to the decedent (see, CPLR 3212; Zuckerman v City of New York, 49 N.Y.2d 557). Accordingly, we affirm. Bracken, J.P., Rosenblatt, Miller and Krausman, JJ., concur.