Opinion
No. 42079/14.
06-12-2017
NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY, Plaintiff, v. ADAM'S EUROPEAN CONTRACTING, INC., Defendant.
Andrew D. Polin, Esq., Polin, Prisco & Villafane, Esq., Westbury, Attorneys for Universal. Cullen and Dykman LLP, Renee C. Fahey, Esq., New York, Attorneys for Adam's.
Andrew D. Polin, Esq., Polin, Prisco & Villafane, Esq., Westbury, Attorneys for Universal.
Cullen and Dykman LLP, Renee C. Fahey, Esq., New York, Attorneys for Adam's.
JOSEPH E. CAPELLA, J.
The following papers numbered 1 to 3 read on this motion noticed on April 24, 2017, and duly submitted as no. _____ on the Motion Calendar of __________.
| PAPERS | NUMBERED |
|---|---|
| NOTICE OF MOTION AND AFFIDAVITS ANNEXED | 1 |
| ANSWERING AFFIDAVIT AND EXHIBITS | 2 |
| REPLY AFFIDAVIT AND EXHIBITS | 3 |
| AND AFFIDAVITS ANNEXED |
UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS GRANTED AS FOLLOWS:
The plaintiff, New York City School Construction Authority ("SCA"), filed the instant suit against third-party plaintiff, ADAM'S EUROPEAN CONTRACTING, INC. ("Adam's"), for breach of a written construction contract they had entered into on March 3, 2009. SCA seeks to recover for damages allegedly caused by Adam's defective construction work at a local public school. Adam's subsequently commenced a third-party action seeking contribution and indemnification against the above third-party defendants asserting that all of the damages alleged by SCA are attributable to prior construction-related services the third-party defendants had provided. By notice of motion dated March 27, 2017, third-party defendant, Universal Testing & Inspection Services, Inc. ("Universal"), seeks dismissal based on documentary evidence ( CPLR 3211(a)(1) ) and a failure to state a cause of action ( CPLR 3211(a)(7) ) of both Adam's third-party complaint and the cross-claims asserted by third-party defendants, Susan Doban and Susan Doban Architect, P.C. ("Dobans"). The Dobans have not opposed this motion; therefore, that portion of Universal's motion which seeks to dismiss the cross-claims by the Dobans is granted.
There is no contract between Adam's and Universal, and as already noted, the underlying action by SCA against Adam's is for breach of the March 2009–contract. The documentary evidence ( CPLR 3211(a)(1) ) Universal annexed to its motion is a written contract dated July 18, 2008, between Universal and SCA which provided, inter alia, that Universal would perform inspection and testing of construction work done by contractors and subcontractors at the subject public school to ensure compliance with SCA's requirements. Although not alleged in its third-party complaint, Adam's now alleges in opposition to this motion that because Adam's work progress was contingent upon the aforementioned inspections by Universal, a special relationship existed between Universal and Adam's. To qualify as a special relationship, however, the relationship between Universal and Adam's must have been "so close as to approach contractual privity," and all we have here is a simple arm's length working relationship at a job site, which is not enough. ( United v. Consolidated Edison, 213 A.D.2d 283 [1st Dept 1995] ; Freedman v. AI Credit, 226 A.D.2d 1002 [3rd Dept 1996].) Besides not alleging the existence of a special relationship, Adam's third-party complaint does not allege that Universal violated same by failing to impart correct information to Adam's, which would establish a breach of said relationship. ( United, 213 A.D.2d 283.) Keep in mind that in determining whether to dismiss for failing to state a cause of action ( CPLR 3211(a)(7) ), the pleadings are afforded a liberal construction, the court accepts as true the facts alleged therein and accords the plaintiff the benefit of every possible inference. ( Frank v. Daimlerchrysler, 292 A.D.2d 118 [1st Dept 2002].) However, as already noted, none of the requisite elements of a special relationship are plead in Adam's third-party complaint. Even if the court were to go beyond the pleadings and consider the opposition papers, these conclusory allegations are only supported by an attorney affirmation which is insufficient to even suggest that further discovery might be warranted. ( Zuckerman v. City of NY, 49 N.Y.2d 557 [1980].) Lastly, even assuming that it was sufficiently plead, a special relationship only comes into play within the confines of a claim for negligent misrepresentation ( Ossining v. Anderson, 73 N.Y.2d 417 [2nd Dept 1989] ), which is not the case here.
As for Adam's claim for indemnification, such a claim only arises via an express or implied contract. That's because indemnification derives from either a contractual or other similar relationship between a wrongdoer and another, such as employee and employer, ( Riviello v. Waldron, 47 N.Y.2d 297 [1979] ), products liability, ( McDermott v. City of New York, 50 N.Y.2d 211 [1980] ), or from a duty imposed by statute as a result of a breach of an implied warranty of fitness ( 23 N.Y. Jur 2d, Contribution, Indemnity and Subrogation, § 62 ). Indemnification also provides for a complete shifting of the loss. ( Rock v. Reed–Prentice, 39 N.Y.2d 34 [1976] ; McFall v. Compagne, 304 N.Y. 314 [1952].) The July 2008–contract between SCA and Universal, which does include an indemnification clause, clearly establishes that Adam's is not a party to same. Given the absence of an express indemnity agreement between Adams and Universal, or the alleged existence of a similar contractual relationship plead in the complaint ( County of Westchester v. Becket, 102 A.D.2d 34 [1984] ), there can be no cause of action for indemnification.
As for the contribution claim, such a claim is permitted pursuant to section 1401 of the CPLR. Section 1401 provides that where two or more persons are subject to liability for the same personal injury, injury to property or wrongful death, then they may claim contribution among them. In other words, an action for contribution arises where there are several tort-feasors (emphasis added) who share culpability for an injury and whose liability may be equitably apportioned according to fault. ( Dole v. Dow, 30 N.Y.2d 143[1972].) In Dole, the Court of Appeals relied principally on the legislative history of CPLR 1401 in concluding that purely economic loss resulting from a breach of contract does not constitute injury to property within the meaning of this statute. Section 1401 has its genesis in tort law and the complications surrounding the apportionment of liability among joint tort-feasors. ( Board of Education v. Sargent, 71 N.Y.2d 21 [1987].) In Sargent, the Court of Appeals once again found nothing in the legislative history or the common-law evolution of the statute on which to base a conclusion that CPLR 1401 was intended to apply in a pure breach of contract action so as to permit contribution between two contracting parties whose only potential liability to a plaintiff is for the contractual benefit of the bargain. In sum, the existence of some form of tort liability is a prerequisite to application of this statute.
Therefore, in order for contribution to be available to Adam's, at least one of the plaintiff-SCA's claims must seek traditional tort damages based on personal injury or property damage arising from some breach of duty independent of contractual duties. ( Castle Village v. Greater New York, 58 AD3d 178 [1st Dept 2008] ; Sound Refrigeration v. All City Testing, 84 AD3d 1349 [2nd Dept 2011] ; Structure Tone v. Universal Services, 87 AD3d 909 [1st Dept 2011].) Here, where the nature of the underlying liability for which contribution is sought is based exclusively on a breach of contract, it falls outside the scope of CPLR 1401. ( Board of Education v. Sargent, 71 N.Y.2d 21 [1987] ; Schottland v. Brown Harris, 137 AD3d 997 [2nd Dept 2016].) Given the aforementioned, the instant motion is granted, and Adam's third-party complaint as against Universal is dismissed.
Universal is directed to serve a copy of this decision/order with notice of entry by first class mail upon all parties within 30 days of receipt of copy of same. This constitutes the decision and order of this court.