Opinion
651369/13 16206 16205
11-24-2015
LEHR ASSOCIATES CONSULTING ENGINEERS, LLP, Plaintiff–Appellant, v. DAIKIN AC (AMERICAS) INC., et al., Defendants–Respondents.
Whiteford Taylor & Preston LLP, Washington, DC (C. Allen Foster of the bar of the District of Columbia and the State of North Carolina, admitted pro hac vice, of counsel), for appellant. Mintz Levin Cohn Ferris Glovksy & Popeo, P.C., New York (Kevin N. Ainsworth of counsel), for Daikin AC (Americas) Inc., respondent. Sinnreich Kosakoff & Messina LLP, Central Islip (David B. Kosakoff of counsel), for Leonard Colchamiro, P.C., respondent.
Whiteford Taylor & Preston LLP, Washington, DC (C. Allen Foster of the bar of the District of Columbia and the State of North Carolina, admitted pro hac vice, of counsel), for appellant.
Mintz Levin Cohn Ferris Glovksy & Popeo, P.C., New York (Kevin N. Ainsworth of counsel), for Daikin AC (Americas) Inc., respondent.
Sinnreich Kosakoff & Messina LLP, Central Islip (David B. Kosakoff of counsel), for Leonard Colchamiro, P.C., respondent.
Opinion
Orders, Supreme Court, New York County (Eileen Bransten, J.), entered April 15, 2014, which granted defendants' motions to dismiss the complaint pursuant to CPLR 3211(a)(3) and (7), unanimously affirmed, with costs.
Plaintiff has no standing to maintain this suit, because after it assigned its claims against defendants to nonparty Timber Falls Foundation, it was “no longer the real party in interest” (see James McKinney & Son v. Lake Placid 1980 Olympic Games, 61 N.Y.2d 836, 838, 473 N.Y.S.2d 960, 462 N.E.2d 137 1984 ).
It would not avail plaintiff to amend the complaint to substitute Timber Falls as the plaintiff (see MK W. St. Co. v. Meridien Hotels, 184 A.D.2d 312, 313, 584 N.Y.S.2d 310 1st Dept.1992 ). As of the commencement of this action, Timber Falls could not have asserted claims against defendants, because its 270–day deadline to do so (per its settlement with plaintiff and plaintiff's insurer) had already passed.
Even if plaintiff had standing or Timber Falls could be substituted as the plaintiff, neither contribution nor indemnification would be available to plaintiff. “[P]urely economic loss resulting from a breach of contract does not constitute ‘injury to property’ within the meaning of New York's contribution statute” (CPLR 1401) (Board of Educ. of Hudson City School Dist. v. Sargent, Webster, Crenshaw & Folley, 71 N.Y.2d 21, 26, 523 N.Y.S.2d 475, 517 N.E.2d 1360 1987 ). Plaintiff's reliance on Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 583 N.Y.S.2d 957, 593 N.E.2d 1365 (1992) and 17 Vista Fee Assoc. v. Teachers Ins. & Annuity Assn. of Am., 259 A.D.2d 75, 693 N.Y.S.2d 554 (1st Dept.1999) is unavailing (see Children's Corner Learning Ctr. v. A. Miranda Contr. Corp., 64 A.D.3d 318, 324, 879 N.Y.S.2d 418 1st Dept.2009; Structure Tone, Inc. v. Universal Servs. Group, Ltd., 87 A.D.3d 909, 911, 929 N.Y.S.2d 242 1st Dept.2011 ).
Indemnification would not be available because plaintiff failed to show that it was without fault (see Rosado v. Proctor & Schwartz, 66 N.Y.2d 21, 24–25, 494 N.Y.S.2d 851, 484 N.E.2d 1354 1985 ). Timber Falls alleged in its demand for arbitration that plaintiff violated its contractual and professional duties to Timber Falls; it did not merely seek to impose vicarious liability on plaintiff for defendants' misdeeds (see e.g. Richards Plumbing & Heating Co., Inc. v. Washington Group Intl., Inc., 59 A.D.3d 311, 874 N.Y.S.2d 410 1st Dept.2009; Trustees of Columbia Univ. v. Mitchell/Giurgola Assoc., 109 A.D.2d 449, 453, 492 N.Y.S.2d 371 1st Dept.1985 ).
We have considered plaintiff's remaining arguments and find them unavailing.