Opinion
7645 Index 157823/14
11-20-2018
Alan S. RIPKA, Plaintiff–Appellant, v. Seth ROTTER, Defendant–Respondent.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant. Frederick J. Martorell, P.C., Brooklyn (Frederick J. Martorell of counsel), for respondent.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant.
Frederick J. Martorell, P.C., Brooklyn (Frederick J. Martorell of counsel), for respondent.
Renwick, J.P., Richter, Tom, Kern, Oing, JJ.
Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered March 16, 2015, which, to the extent appealed from as limited by the briefs, granted defendant's motion to dismiss the complaint, and denied plaintiff's cross motion for leave to amend the complaint, unanimously affirmed, without costs.
Plaintiff alleges that defendant is required to reimburse him for 50% of the judgment entered against him personally in a prior action ( Lifeline Funding, LLC v. Ripka, 114 A.D.3d 507, 980 N.Y.S.2d 416 [1st Dept. 2014] [the Lifeline action), pursuant to a Stipulation of Settlement entered into between the parties concerning their obligations for debts of their former law firm. The motion court correctly determined that the breach of contract and negligence claims are barred by the applicable statutes of limitations ( CPLR 213 ; 214), because this action was commenced more than six years after the underlying law firm debt became due and more than three years after defendant's alleged negligence occurred in failing to satisfy the debt. The indemnification claim was correctly dismissed because there is no indemnity provision in the Stipulation of Settlement (see Ruiz–Hernandez v. TPE NWI Gen., 106 A.D.3d 627, 966 N.Y.S.2d 62 [1st Dept. 2013] ). Moreover, defendant cannot be required to indemnify plaintiff for the judgment entered against him in the Lifeline action, because the judgment was based on plaintiff's own wrongful conduct (see Trump Vil. Section 3 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] ).
The motion court properly denied plaintiff's cross motion for leave to amend his complaint to assert a contribution claim, because contribution is not available "between two parties whose potential liability to a third party is for economic loss resulting only from a breach of contract" ( Board of Educ. of Hudson City School Dist. v. Sargent, Webster, Crenshaw & Folley, 71 N.Y.2d 21, 23, 523 N.Y.S.2d 475, 517 N.E.2d 1360 [1987] ; see Bloostein v. Morrison Cohen LLP, 157 A.D.3d 432, 66 N.Y.S.3d 120 [1st Dept. 2018] ).
We have considered plaintiff's remaining arguments and find them unavailing.