Opinion
1434
June 20, 2002.
Order, Supreme Court, New York County (Jane Solomon, J.), entered October 18, 2001, which, to the extent appealed from, denied fourth-party defendant Lane Engineering Consulting, P.C.'s motion for summary judgment dismissing fourth-party plaintiff Ivan Brice's claim for contribution, unanimously affirmed, without costs.
SCOTT K. WINIKOW, for Plaintiff-respondent.
WILLIAM D. BRODERICK, for Defendant-appellant.
Saxe, J.P., Sullivan, Lerner, Rubin, Friedman, JJ.
Contrary to fourth-party defendant Lane Engineering's argument, fourth-party plaintiff Brice's claim for contribution against it is not subject to dismissal for Brice's failure to demonstrate privity with it, the other alleged wrongdoer. All that must be shown by Brice to set forth a viable claim for contribution is that both parties owed a duty to third-party plaintiff and that both contributed to third-party plaintiff's harm by breaching their respective duties (see, Raquet v. Braun, 90 N.Y.2d 177, 183, citing Nassau Roofing Sheet Metal Co. v. Facilities Dev. Corp., 71 N.Y.2d 599, 603; Bd. of Educ. v. Sargent, Webster, Crenshaw Folley, 71 N.Y.2d 21, 28; Schauer v. Joyce, 54 N.Y.2d 1, 5).
Although contribution under CPLR 1401 is not available where the damages sought by the plaintiff are exclusively for breach of contract, i.e., to obtain the benefit-of-the-bargain (see, Rockefeller Univ. v. Tishman Constr. Corp., 240 A.D.2d 341, lv denied 91 N.Y.2d 803), the claims of third-party plaintiff against Brice are not so limited. Third-party plaintiff has asserted a professional malpractice claim against Brice, and professionals "may be subject to tort liability for failure to exercise reasonable care, irrespective of their contractual duties" (see, Sommer v. Fed. Signal Corp., 79 N.Y.2d 540, 551; see also, 17 Vista Fee Assocs. v. Teachers Ins. and Annuity Assn. of Am., 259 A.D.2d 75, 83). Accordingly, the court properly held that, insofar as any liability on Brice's part is based in tort, he may seek contribution from Lane under the theory that Lane is a successive tortfeasor (see, Raquet v. Braun, 90 N.Y.2d, supra, 183). Although a tort claim against Brice may not ultimately be established, one is still pending and, thus, "the necessary predicate tort liability for a contribution action remains in the case" (see, St. Patrick's Home for the Aged Infirm v. Laticrete Intl., Inc., 264 A.D.2d 652, 658).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.