Opinion
9642 9643 Index 159713/15
06-18-2019
Eamonn CASSIDY, Plaintiff, v. GREATER NEW YORK AUTOMOBILE DEALERS ASSOCIATION, INC., et al., Defendants. George P. Johnson Company, Third–Party Plaintiff–Appellant, v. Freeman Decorating Services, Inc., et al., Third–Party Defendants–Respondents.
Law Office of James J. Toomey, New York (Evy L. Kazansky of counsel), for appellant. Forchelli Deegan Terrana LLP, Uniondale (Russell G. Tisman of counsel), for respondents.
Law Office of James J. Toomey, New York (Evy L. Kazansky of counsel), for appellant.
Forchelli Deegan Terrana LLP, Uniondale (Russell G. Tisman of counsel), for respondents.
Sweeny, J.P., Manzanet–Daniels, Kapnick, Oing, Singh, JJ.
Judgment, Supreme Court, New York County (Manuel J. Mendez, J.), entered May 7, 2018, dismissing the third-party complaint and bringing up for review an order, same court and Justice, entered May 2, 2018, which granted the motion of third-party defendant Freeman Expositions, Inc., formerly known as Freeman Decorating Services, Inc. (Freeman) to dismiss the action as against it, unanimously reversed, on the law, without costs, the judgment vacated, the complaint reinstated, and the motion denied.
Viewing the facts of the third-party complaint in the light most favorable to third-party plaintiff and assuming the truth of the allegations for the purpose of CPLR 3211(a)(7), we find that it states valid claims for both contractual and common law indemnification (see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326–327, 746 N.Y.S.2d 858, 774 N.E.2d 1190 [2002] ; Basis Yield Alpha Fund [Master] v. Goldman Sachs Group, Inc., 115 A.D.3d 128, 134–135, 980 N.Y.S.2d 21 [1st Dept. 2014] ). Nor is dismissal warranted under CPLR 3211(a)(1). The documentary evidence does not utterly refute the allegations in the third-party complaint (see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ; Lopez v. Fenn, 90 A.D.3d 569, 570, 937 N.Y.S.2d 1 [1st Dept. 2011] ). In addition, Freeman has not established, as a matter of law, a defense to the third-party common law indemnification claim based on a claimed special employee relationship between itself and plaintiff (see Holmes v. Business Relocation Servs., Inc., 25 N.Y.3d 955, 956, 8 N.Y.S.3d 253, 30 N.E.3d 896 [2015] ; Cartagena v. Access Staffing, LLC, 151 A.D.3d 580, 581, 57 N.Y.S.3d 143 [1st Dept. 2017] ).