We modify, and dismiss the counterclaim. "A person charged with performing work under a contract must exercise reasonable skill and care in performing the work and negligent performance of the work may give rise to actions in tort and for breach of contract" ( International Fid. Ins. Co. v Gaco W., 229 AD2d 471, 474). Nevertheless, where a landscaper warns a customer to avoid certain actions that will be detrimental to flora and vegetation, but the customer ignores the warning to his detriment, the landscaper is entitled to recover the contractually-agreed fee for its work, or the fair value thereof ( see Mirabelli v City of New York, 262 App Div 60). Moreover, when a contractor performs its obligations in a workmanlike manner according to the plans and specifications agreed to by the owner, the contractor is not liable for damage that may result ( see Carrols Equities Corp. v Villnave, 76 Misc 2d 205). Here, the plaintiff warned the defendant that his plans for accomplishing the desired result would likely cause damage to property, but the defendant nevertheless directed that the plaintiff proceed against its own advice.

Manifestly, under these pleadings it is possible that the proof may establish that both the cross-claiming defendants and the appellant York contributed to causing the property damage. Accordingly, and regardless of whether the recovery be upon similar or different theories, the architects and the engineers may be entitled to indemnity or apportionment from appellant and the motion was properly denied (CPLR 1401, 1403; Taft v. Shaffer Trucking, 52 A.D.2d 255; and cf. Carrols Equities Corp. v. Villnave, 76 Misc.2d 205, affd 49 A.D.2d 672).

Such language is certainly no concession of any responsibility on Sheber's part for the reason that, if Sheber has performed in accordance with the plans and specifications, as it specifically alleges, it cannot be held liable to plaintiff on account of the improper performance of Blatner in the preparation of said plans and specifications. Under such circumstances, the third-party complaint must be dismissed (Carrols Equities Corp. v Villnave, 76 Misc.2d 205, affd 49 A.D.2d 672). Any fair reading of the pleadings leads inexorably to this same conclusion, particularly in view of the Practice Commentary cited above.

In so finding, Avemco is not precluded from properly moving to dismiss for failure to state a cause of action, if it be so advised (CPLR 3211, subd [e]; Higby Enterprises v City of Utica, 54 Misc.2d 405, affd without opn 30 A.D.2d 1052). It should be further noted that in dismissing the third-party complaint, the court below relied upon Carrols Equities Corp. v Villnave ( 76 Misc.2d 205, affd without opn 49 A.D.2d 672). It was determined there that if the allegations contained in the third-party complaint were established, the third-party plaintiff would not be liable and, therefore, the requirement of CPLR 1007 that the third-party defendant be a person who is or may be liable to the original defendant for all or part of the plaintiff's claim

Appeal from the Onondaga Special Term. Present — Moule, J.P., Cardamone, Simons, Goldman and Del Vecchio, JJ. [ 76 Misc.2d 205.] Order unanimously affirmed, with costs, upon the opinion at Special Term (Hancock, J.).

Moreover, even though the wrongful conduct of Effisolar and CJS relate to the same properties, for Effisolar to be entitled to credit for the CJS Settlement amount, Effisolar and CJS must be able to be held jointly and severally liable for the same damages. See Carrols Equities Corp. v. Villnave, 76 Misc.2d 205, (Sup.Ct. Onondaga Cty.1973), aff'd, 49 A.D.2d 672, 373 N.Y.S.2d 1012 (4th Dept.1975). CJS cannot be held jointly and severally liable for breach of the NDA, which was between Sunlight and Effisolar.

(See, MacKnight Flintic Stone Co., supra .) The contractor is only responsible for the performance of the construction contract and those working under its direction (see, Carrols Equity Corp. v. Villnave, 76 Misc 2d 205, 350 NYS2d 90, affd mem 49 AD2d 672, 373 NYS2d 1012 (4th Dept. 1975)). On June 9, 2009 when the Court directed the plaintiff to call his first witness, Mr. Marchasi, the plaintiff requested to reopen his direct testimony again.

Here, the alleged wrongful conduct of Zacharius, although relating to the same building, would result, if established, in distinctly different and separable damages from those for which defendants were held liable by the jury. (Carrols Equities Corp. v Villnave, 76 Misc.2d 205 [Sup Ct, Onondaga County 1973], affd 49 A.D.2d 672 [4th Dept 1975].) THE EFFECT OF THE ROMEO-TUDDA SETTLEMENT

In Carrols Equities Corp. v Villnave ( 76 Misc.2d 205, affd 49 A.D.2d 672), the court ruled that a third-party claim cannot be sustained unless the defendant can be held jointly or severally liable to the plaintiff for damages. The court found that the pleadings did not present any possible situation in which third-party plaintiff contractor could be found liable for any damages caused by negligence of the third-party defendant engineer.

A coincidence of conduct of the tort-feasors is required to the extent, at least, that it can be said that the actions of each had some direct causal connection with the happening of the same accident or occurrence or that the conduct of one — even though related to a different and separate occurrence — created or increased the damages for which the other could be liable.Margolin v New York Life Ins. Co. ( 32 N.Y.2d 149); Carrols Equities Corp. v Villnave ( 76 Misc.2d 205, affd 49 A.D.2d 672).Dole v Dow Chem. Co. ( 30 N.Y.2d 143, supra).