Opinion
May 29, 2001.
Order, Supreme Court, New York County (Louise Gruner Gans, J.), entered on or about March 21, 2000, which, inter alia, denied defendants-appellants' motion for summary judgment dismissing the cross-claims asserted against them by defendants Isaacson, Robustelli, Fox, Fine, Greco Fogelgaren, P.C., the firm of Fogelgaren Bergman, Eric Fogelgaren and Robert Bergman, Esq. (Collectively "Isaacson"), unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendants-appellants dismissing the cross-claims as against them.
Paul A. Spletzer, for plaintiff-respondent.
Christopher P. Foley, for defendants-respondents.
Andrew Grant Tretter, for defendants-appellants.
Before: Williams, J.P., Wallach, Lerner, Rubin, Friedman, JJ.
The IAS court erred in its failure to dismiss Isaacson's indemnity/contribution cross claim against defendants-appellants. Both defendants-appellants and Isaacson owed plaintiff independent, non-delegable duties of care. "When two tort-feasors neither act in concert nor contribute concurrently to the same wrong, they are not joint tort-feasors; rather, their wrongs are independent and successive" (Suria v. Shiffman, 67 N.Y.2d 87, 98). The party from whom contribution is sought must have had a role in causing or augmenting the injury for which contribution is sought (See, Nassau Roofing Sheet Metal Co. v. Facilities Dev. Corp., 71 N.Y.2d 599, 603). Here, this standard is not met. Isaacson had an independent duty to represent plaintiff's interests and to advise him of all available causes of action based on the facts he conveyed to them (see, Darby Darby, P.C. v. VSI International, Inc., 268 A.D.2d 270, affd 95 N.Y.2d 308). Further, since Isaacson owed plaintiff an independent non-delegable duty of care, a cross-claim for indemnification will not stand where Isaacson has not demonstrated that it was unfairly required to discharge the duty that should have been discharged by another (Board of Educ. v. Sargent, Webster, Crenshaw Folley, 71 N.Y.2d 21).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.