Opinion
2015-09-23
O.K. PETROLEUM DISTRIBUTION CORP., et al., appellants, West Hempstead Water District, et al., defendants, Chevron U.S.A., Inc., et al., respondents.
Richman & Levine, P.C., Garden City, N.Y. (Keith H. Richman of counsel), for appellants. King & Spalding, LLP, New York, N.Y. (John A. Calabro and James J. Maher of counsel), for respondent Chevron U.S.A., Inc.; McDermott, Will & Emery, LLP, New York, N.Y. (James A. Pardo and Lisa A. Gerson of counsel), for respondents Socony–Vacuum Oil Corp. and Mobil Oil Corporation, now known as Exxon Mobil Corporation; Sedgwick, LLP, New York, N.Y. (David M. Covey, Soo Y. Kim, and Peter C. Condron of counsel), for respondent Motiva Enterprises, LLC; Mound Cotton Wollan & Greengrass, New York, N.Y. (George Buermann of counsel), for respondent Rila Realty Corp.; Constantino & Constantino, Copiague, N.Y. (Steven A. Constantino of counsel), for respondents Ronald Jordan and Esther Jordan; and Goodwin Procter, LLP, New York, N.Y. (Brian D. Hail and Jason O. Braiman of counsel), for respondent Cumberland Farms, Inc. (one brief filed).
Richman & Levine, P.C., Garden City, N.Y. (Keith H. Richman of counsel), for appellants. King & Spalding, LLP, New York, N.Y. (John A. Calabro and James J. Maher of counsel), for respondent Chevron U.S.A., Inc.; McDermott, Will & Emery, LLP, New York, N.Y. (James A. Pardo and Lisa A. Gerson of counsel), for respondents Socony–Vacuum Oil Corp. and Mobil Oil Corporation, now known as Exxon Mobil Corporation; Sedgwick, LLP, New York, N.Y. (David M. Covey, Soo Y. Kim, and Peter C. Condron of counsel), for respondent Motiva Enterprises, LLC; Mound Cotton Wollan & Greengrass, New York, N.Y. (George Buermann of counsel), for respondent Rila Realty Corp.; Constantino & Constantino, Copiague, N.Y. (Steven A. Constantino of counsel), for respondents Ronald Jordan and Esther Jordan; and Goodwin Procter, LLP, New York, N.Y. (Brian D. Hail and Jason O. Braiman of counsel), for respondent Cumberland Farms, Inc. (one brief filed).
In an action, inter alia, for contribution, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Sher, J.), dated August 12, 2013, as granted those branches of the separate motions of the defendants Chevron U.S.A., Inc., and Gulf Oil Corporation, Cumberland Farms, Inc., Mobil Oil Corporation, now known as Exxon Mobil Corporation, and Socony–Vacuum Oil Corp., Ronald Jordan and Esther Jordan, Motiva Enterprises, LLC, and Rila Realty Corp. which were pursuant to CPLR 3211(a) to dismiss the cause of action for contribution for liability the plaintiffs in this action might incur in connection with an action entitled State of New York v O.K. Petroleum Distribution Corp., pending in the Supreme Court, Albany County, under Index No. L–00063–12, insofar as asserted against each of them.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly granted those branches of the respondents' separate motions which were pursuant to CPLR 3211(a) to dismiss the cause of action for contribution for liability the plaintiffs in this action might incur in connection with an action entitled State of New York v O.K. Petroleum Distribution Corp., pending in the Supreme Court, Albany County, under Index No. L–00063–12, insofar as asserted against each of them. While CPLR 1403 permits a separate cause of action for contribution, in this case, the plaintiffs have not sustained any damages as the result of the alleged negligence of the respondents, as there has been no judgment or settlement in the underlying action ( see Kings Park Indus., Inc. v. Affiliated Agency, Inc., 22 A.D.3d 466, 802 N.Y.S.2d 202; Hesse v. Speece, 204 A.D.2d 514, 611 N.Y.S.2d 308). Accordingly, the cause of action for contribution at issue here is premature, as the resolution of the underlying action is beyond the control of the parties and might not result in an award of damages ( see Cutro v. Sheehan Agency, 96 A.D.2d 669, 466 N.Y.S.2d 733; see also New York Pub. Interest Research Group v. Carey, 42 N.Y.2d 527, 531, 399 N.Y.S.2d 621, 369 N.E.2d 1155). DILLON, J.P., CHAMBERS, AUSTIN and SGROI, JJ., concur.