Opinion
2012-12-13
W.W. GLASS SYSTEM, INC., Fourth–Party Plaintiff, v. METAL SALES CO., INC., Fourth–Party Defendant. [And Another Action] Metal Sales Co., Inc., Third Fourth–Party Plaintiff–Appellant, v. H.R.A.D. Construction Corp., et al., Third Fourth–Party Defendants–Respondents.
Litchfield Cavo LLP, New York (Joseph E. Boury of counsel), for appellant. Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains (Debra A. Adler of counsel), for H.R.A.D. Construction Corp. and HRAD/MRP J.V., LLC, respondents.
Litchfield Cavo LLP, New York (Joseph E. Boury of counsel), for appellant. Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains (Debra A. Adler of counsel), for H.R.A.D. Construction Corp. and HRAD/MRP J.V., LLC, respondents.
Gruvman, Giordano & Glaws, LLP, New York (Charles T. Glaws of counsel), for Total Safety Consulting LLC, respondent.
TOM, J.P., SWEENY, MOSKOWITZ, RENWICK, CLARK, JJ.
Order, Supreme Court, New York County (Carol R. Edmead, J.), entered July 6, 2011, which granted the motion of third fourth-party defendant Total Safety Consulting LLC and the cross motion of the third fourth-party HRAD defendants to dismiss the third fourth-party action, and denied third fourth-party plaintiff Metal Sales Co., Inc.'s cross motion to vacate portions of the court's orders entered November 10, 2010 and December 7, 2010 that dismissed its claims for common-law indemnification against Total Safety, and for renewal of its argument that its claim for common-law indemnification against Total Safety was viable, unanimously modified, on the law, to deny so much of Total Safety's motion and the HRAD defendants' cross motion as sought dismissal of Metal Sales' third fourth-party contribution claims, and otherwise affirmed, without costs.
The court correctly dismissed Metal Sales' common-law indemnification claims. Metal Sales failed to offer evidence showing that liability on its part, if any, was only vicarious vis-à-vis Total Safety or the HRAD defendants ( see generally McDermott v. City of New York, 50 N.Y.2d 211, 216–217, 428 N.Y.S.2d 643, 406 N.E.2d 460 [1980];Edge Mgt. Consulting, Inc. v. Blank, 25 A.D.3d 364, 367, 807 N.Y.S.2d 353 [2006],lv. dismissed7 N.Y.3d 864, 824 N.Y.S.2d 608, 857 N.E.2d 1139 [2006] ).
Metal Sales' contribution claims should not have been dismissed. The court's order entered November 10, 2010 did not expressly grant relief, either way, as to those claims. To the extent that language in the court's memorandum decision might be interpreted as dismissing the contribution claim against Total Safety pursuant to General Obligations Law § 15–108(b) based on the court's mistaken belief that Total Safety had obtained a release from liability in conjunction with a settlement of the main action, Metal Sales should be relieved of that finding ( see generallyCPLR 5015[a][2], [3]; CPLR 2221 [e]; cf. Long Is. Light. Co. v. Century Indem. Co., 52 A.D.3d 383, 384, 861 N.Y.S.2d 616 [2008];Matter of McKenna v. County of Nassau, Off. of County Attorney, 61 N.Y.2d 739, 472 N.Y.S.2d 913, 460 N.E.2d 1348 [1984] ). Indeed, the finding was based on Total Safety's inaccurate, unequivocal statement that it had obtained a release from the project manager and general contractor who had settled in the main action. Total Safety's inaccurate assertion came to light only after entry of the court's order. Further, after the end of lengthy discovery, Metal Sales diligently sought to conform its claims to the evidence, which, as found by the motion court, reflected a basis for finding that the acts and/or omissions of Total Safety and the HRAD defendants had potentially contributed to plaintiff's fall and injury.