Opinion
06-01-2017
CHATHAM TOWERS, INC., Plaintiff, v. CASTLE RESTORATION & CONSTRUCTION, INC., et al., Defendants. Castle Restoration & Construction, Inc., Third–Party Plaintiff–Appellant, v. JPI Construction & Management Services, Inc., et al., Third–Party Defendants, Howard L. Zimmerman Architect P.C., Third–Party Defendant–Respondent.
Havkins Rosenfeld Ritzert & Varriale, LLP, Mineola (Gail L. Ritzert of counsel), for appellant. McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York (Brian L. Battisti respondent.
Havkins Rosenfeld Ritzert & Varriale, LLP, Mineola (Gail L. Ritzert of counsel), for appellant.
McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York (Brian L. Battisti respondent.
SWEENY, J.P., MAZZARELLI, MOSKOWITZ, MANZANET–DANIELS, KAPNICK, JJ.
Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered March 10, 2016, which, insofar as appealed from as limited by the briefs, granted third-party defendant Howard L. Zimmerman Architect P.C.'s (Zimmerman) motion to dismiss defendant-third-party plaintiff Castle Restoration & Construction, Inc.'s (Castle) common-law claims against it for contribution and indemnification, unanimously affirmed, without costs.
The court properly dismissed Castle's common-law contribution claim against Zimmerman. Although Castle attempted to cast plaintiff Chatham Towers, Inc.'s (Chatham) claims, as set forth in the underlying complaint, as sounding in tort, the claims were actually all based on alleged breaches of a contract between Chatham and Castle. Thus, because Chatham sought only to enforce the benefit of its bargain with Castle, its damages were for purely economic loss, and does not constitute an injury to property under CPLR 1401, which governs claims for contribution (see 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] ; Structure Tone, Inc. v. Universal Servs. Group, Ltd., 87 A.D.3d 909, 911, 929 N.Y.S.2d 242 [1st Dept.2011] ; Children's Corner Learning Ctr. v. A. Miranda Contr. Corp., 64 A.D.3d 318, 323, 879 N.Y.S.2d 418 [1st Dept.2009] ).
In addition, the court also properly dismissed Castle's common-law indemnification claim. Common-law indemnification may be pursued by parties who have been held vicariously liable for the party that actually caused the negligence that injured the plaintiff (Naughton v. City of New York, 94 A.D.3d 1, 10, 940 N.Y.S.2d 21 [1st Dept.2012] ; Correia v. Professional Data Mgt., 259 A.D.2d 60, 65, 693 N.Y.S.2d 596 [1st Dept.1999] ). Here, however, there is no common-law indemnification claim because Chatham sought recovery from Castle because of the latter's alleged wrongdoing—breach of contract—and not vicariously because of any negligence on the part of Zimmerman (see Structure Tone, Inc., 87 A.D.3d at 911–912, 929 N.Y.S.2d 242 ; Trump Vil. Section 3, Inc. v. New York State Hous. Fin. Agency, 307 A.D.2d 891, 895, 764 N.Y.S.2d 17 [1st Dept.2003], lv. denied 1 N.Y.3d 504, 775 N.Y.S.2d 780, 807 N.E.2d 893 [2003] ; Trustees of Columbia Univ. v. Mitchell/Giurgola Assoc., 109 A.D.2d 449, 453, 492 N.Y.S.2d 371 [1st Dept.1985] ).