Opinion
2013-02-6
Peter BALKHEIMER, et al., plaintiffs, v. Donald SPANTON, etc., et al., defendants third-party plaintiffs-respondents; Forchelli, Curto, Schwartz, Mineo, Carlino & Cohn LLP, et al., third-party defendants-appellants.
L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Amy M. Monahan and Diane P. Whitfield of counsel), for third-party defendants-appellants. Furman Kornfeld & Brennan LLP, Elmsford, N.Y. (R. Evon Idahosa and Andrew S. Kowlowitz of counsel), for defendants third-party plaintiffs-respondents.
L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Amy M. Monahan and Diane P. Whitfield of counsel), for third-party defendants-appellants. Furman Kornfeld & Brennan LLP, Elmsford, N.Y. (R. Evon Idahosa and Andrew S. Kowlowitz of counsel), for defendants third-party plaintiffs-respondents.
PETER B. SKELOS, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.
In an action to recover damages for legal malpractice, the third-party defendants appeal from an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated December 9, 2011, which denied their motion pursuant to CPLR 3211(a)(5) and (a)(7) to dismiss the third-party complaint.
ORDERED that the order is reversed, on the law, with costs, and the motion of the third-party defendants pursuant to CPLR 3211(a)(5) and (a)(7) to dismiss the third-party complaint is granted.
Pursuant to General Obligations Law § 15–108(b), “[a] release given in good faith by the injured person to one tortfeasor as provided in [General Obligations Law § 15–108(a) ] relieves him [or her] from liability to any other person for contribution as provided in article fourteen of the civil practice law and rules.” Here, the plaintiffs executed a general release in favor of the third-party defendants. There is no indication in the record that the release was not executed in good faith. Therefore, pursuant to General Obligations Law § 15–108(b), the third-party defendants are relieved from liability to the third-party plaintiffs for contribution ( see Ziviello v. O'Boyle, 90 A.D.3d 916, 917, 935 N.Y.S.2d 89;Kagan v. Jacobs, 260 A.D.2d 442, 687 N.Y.S.2d 732). Accordingly, the Supreme Court should have granted that branch of the motion of the third-party defendants which was pursuant to CPLR 3211(a)(5) to dismiss the contribution cause of action in the third-party complaint as barred by the release.
In considering a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the court must “accept the facts as alleged in the [pleading] as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” ( Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511). “[T]he key element of a common-law cause of action for indemnification is not a duty running from the indemnitor to the injured party, but rather is ‘a separate duty owed the indemnitee by the indemnitor’ ” ( Raquet v. Braun, 90 N.Y.2d 177, 183, 659 N.Y.S.2d 237, 681 N.E.2d 404, quoting Mas v. Two Bridges Assocs., 75 N.Y.2d 680, 690, 555 N.Y.S.2d 669, 554 N.E.2d 1257;see Lovino, Inc. v. Lavallee Law Offs., 96 A.D.3d 909, 909–910, 946 N.Y.S.2d 875).
Here, the third-party complaint does not allege the existence of any duty owed by the third-party defendants to the third-party plaintiffs ( see Raquet v. Braun, 90 N.Y.2d at 183, 659 N.Y.S.2d 237, 681 N.E.2d 404;Breen v. Law Off. of Bruce A. Barket, P.C., 52 A.D.3d 635, 638, 862 N.Y.S.2d 50;Keeley v. Tracy, 301 A.D.2d 502, 503, 753 N.Y.S.2d 519). Furthermore, the third-party plaintiffs would not be compelled to pay damages for the alleged negligent acts of the third-party defendants ( see Lovino, Inc. v. Lavallee Law Offs., 96 A.D.3d at 910, 946 N.Y.S.2d 875;Jakobleff v. Cerrato, Sweeney & Cohn, 97 A.D.2d 786, 786–787, 468 N.Y.S.2d 894). Accordingly, the Supreme Court should have granted that branch of the motion of the third-party defendants which was pursuant to CPLR 3211(a)(7) to dismiss the common-law indemnification cause of action in the third-party complaint.
The third-party plaintiffs' remaining contention is without merit.