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Utica Mutual Ins. Co. v. Sweet Constr. Corp.

Appellate Division of the Supreme Court of New York, First Department
Jan 3, 1991
169 A.D.2d 382 (N.Y. App. Div. 1991)

Opinion

January 3, 1991

Appeal from the Supreme Court, New York County (Irma Vidal Santaella, J.).


This is a subrogation action. The plaintiff's subrogor, Quality House of Graphics, Inc., allegedly engaged defendant Sweet Construction Corporation (Sweet) and defendant Richard DeCastro and Sons Electrical Corporation (DeCastro), inter alia, to do certain electrical repairs to the roof of a building on Van Dam Street in Long Island City. The complaint further alleges that on or about June 30, 1984, the plaintiff's insured sustained water and property damage due to the negligence of the defendants.

Defendant DeCastro then brought a third-party complaint against third-party defendants Sigman-Weiss and Giarnella alleging, inter alia, that if plaintiff's insured sustained damage, it was due to the negligence of the third-party defendants and that of plaintiff's insured.

The third-party action seeks contribution rather than indemnification. (See, Board of Educ. v Sargent, Webster, Crenshaw Folley, 71 N.Y.2d 21, 25-29; County of Westchester v Welton Becket Assocs., 102 A.D.2d 34, 46-47, affd 66 N.Y.2d 642; McDermott v City of New York, 50 N.Y.2d 211, 216-219.) The third-party complaint alleges that the third-party defendants, as well as plaintiff's insured, were the active tortfeasors and the third-party complaint thus sounds in contribution. No allegations of express or implied contract are made and thus no valid claim for indemnification has been stated. To the extent that the third-party complaint seeks indemnification, it should be dismissed. To the extent that Giarnella's cross claim seeks indemnification, it should also be dismissed.

Concur — Murphy, P.J., Carro, Rosenberger and Smith, JJ.


Summaries of

Utica Mutual Ins. Co. v. Sweet Constr. Corp.

Appellate Division of the Supreme Court of New York, First Department
Jan 3, 1991
169 A.D.2d 382 (N.Y. App. Div. 1991)
Case details for

Utica Mutual Ins. Co. v. Sweet Constr. Corp.

Case Details

Full title:UTICA MUTUAL INSURANCE COMPANY, as Subrogee of QUALITY HOUSE OF GRAPHICS…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Jan 3, 1991

Citations

169 A.D.2d 382 (N.Y. App. Div. 1991)

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