Opinion
November 7, 1996.
Order, Supreme Court, New York County (Joan Lobis, J.), entered May 22, 1995, which denied defendant and third-party plaintiffs motion for an attachment of the assets of the third-party defendant, and order of the same court and Justice, entered January 22, 1996, which, inter alia, denied defendant and third-party plaintiffs motion for dismissal of the complaint, and granted the third-party defendant's cross motion to dismiss the third-party complaint, unanimously affirmed, with one bill of costs.
Before: Sullivan, J.P., Ellerin, Ross and Tom, JJ.
The IAS Court properly dismissed the third-party complaint for failure to state a cause of action (CPLR 3211 [a] [7]; Underpinning Found. Constructors v Chase Manhattan Bank, 46 NY2d 459, 462). The cause of action seeking contribution was properly dismissed since third-party plaintiff failed to establish that the third-party defendant owed him or plaintiff corporation a duty to agree to his proposed escrow arrangement. Although a previous court order suggested that the parties interested in the bonds in question reach such an agreement, the order did not require anyone, particularly the current third-party defendant who was not then a party, to submit to terms that were not mutually acceptable. Since defendant and third-party plaintiff bore a responsibility for ensuring that the bonds were properly redeemed, in that he had sole possession of them, the cause of action seeking indemnification was also properly dismissed ( see, Trustees of Columbia Univ. v Mitchell/Giurgola Assocs., 109 AD2d 449, 453-454).
It was an appropriate exercise of discretion to deny defendant and third-party plaintiffs motion for an attachment since he failed to demonstrate that he would succeed on the merits of his contribution and indemnification claims (CPLR 6201, 6212 [a]; Faberge Intl. v Di Pino, 109 AD2d 235, 239).
Defendant and third-party plaintiffs motion to dismiss the complaint for failure to state a cause of action was also properly denied since the same motion was previously made and denied by another Justice of the Supreme Court. Not only did defendant and third-party plaintiff fail to submit any new evidence or to cite to any change in the law ( see, Weiss v Flushing Natl. Bank, 176 AD2d 797), but the motion was also barred by CPLR 3211 (e) ( see, McLearn v Cowen Co., 60 NY2d 686).