Opinion
October 4, 1991
Appeal from the Supreme Court, Erie County, Francis, J.
Present — Callahan, A.P.J., Doerr, Boomer, Green and Davis, JJ.
Order unanimously affirmed with costs. Memorandum: Community Steel Corporation (Community) purchased 1,200 feet of sponge joint material from Prince Rubber Plastics, Inc. (Prince) and, in turn, sold the joint material to Terra Marine Dredging Corporation (Terra) for Terra's use in a public improvement project in the Town of Amherst. In the main action, Terra asserted a counterclaim against Community for Community's failure, inter alia, "to supply the proper joint material". Community then instituted the third-party action for indemnification against Prince. Supreme Court properly denied Prince's motion to dismiss the third-party complaint.
Community has pleaded a valid claim for implied indemnification. It seeks full reimbursement for Prince's breach of an implied warranty of fitness for a particular purpose (see, Uniform Commercial Code § 2-315; McDermott v. City of New York, 50 N.Y.2d 211, 218-219). With respect to that breach, Community is free from affirmative fault and seeks to shift the obligation where in equity it belongs (see, Garrett v. Holiday Inns, 86 A.D.2d 469, 470, mod on other grounds 58 N.Y.2d 253). Since it is well settled that "[i]ndemnification claims generally do not accrue for the purpose of the Statute of Limitations until the party seeking indemnification has made payment to the injured person" (McDermott v. City of New York, supra, at 216), the third-party action is timely.