Opinion
2019-06292, 2019-06295 Index No. 515724/16
12-15-2021
COBBLESTONE FOODS, LLC, plaintiff, v. BRANDED CONCEPT DEVELOPMENT, INC., defendant third-party plaintiff-appellant, et al., defendants; Shalat Architects, P.C., et al., third-party defendants-respondents; et al., third-party defendant.
Litchfield Cavo LLP, New York, NY (Beth A. Saydak of counsel), for defendant third-party plaintiff-appellant. Byrne & O'Neill, LLP, New York, NY (Mark McCauley of counsel), for third-party defendants-respondents.
Litchfield Cavo LLP, New York, NY (Beth A. Saydak of counsel), for defendant third-party plaintiff-appellant.
Byrne & O'Neill, LLP, New York, NY (Mark McCauley of counsel), for third-party defendants-respondents.
MARK C. DILLON, J.P., SYLVIA O. HINDS–RADIX, LINDA CHRISTOPHER, JOSEPH A. ZAYAS, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for breach of contract, the defendant third-party plaintiff appeals from (1) an order of the Supreme Court, Kings County (Leon Ruchelsman, J.), dated July 2, 2018, and (2) an order of the same court, dated November 14, 2018. The order dated July 2, 2018, insofar as appealed from, granted those branches of the separate motions of the third-party defendant Shalat Architects, P.C., and the third-party defendants Fiskaa, LLC, and Fiskaa Engineering, LLP, which were for summary judgment dismissing the third-party causes of action for contribution and contractual indemnification insofar as asserted against each of them. The order dated November 14, 2018, insofar as appealed from, (a) upon reargument of those branches of the prior separate motions of the third-party defendant Shalat Architects, P.C., and the third-party defendants Fiskaa, LLC, and Fiskaa Engineering, LLP, which were for summary judgment dismissing the third-party cause of action for common-law indemnification insofar as asserted against each of them, in effect, vacated a prior determination in the order dated July 2, 2018, denying those branches of the prior separate motions, and thereupon granted those branches of the prior separate motions, and, (b) upon reargument of the defendant third-party plaintiff's opposition to those branches of the prior separate motions of the third-party defendant Shalat Architects, P.C., and the third-party defendants Fiskaa, LLC, and Fiskaa Engineering, LLP, which were for summary judgment dismissing the third-party causes of action for contribution and contractual indemnification insofar as asserted against each of them, adhered to the prior determination in the order dated July 2, 2018, granting those branches of the prior separate motions.
ORDERED that the appeal from the order dated July 2, 2018, is dismissed, as the portion of the order appealed from was superseded by the order dated November 14, 2018, made upon reargument; and it is further,
ORDERED that the order dated November 14, 2018, is affirmed insofar as appealed from; and it is further,
ORDERED that one bill of costs is awarded to the third-party defendants-respondents.
The third-party defendants Shalat Architects, P.C., Fiskaa, LLC, and Fiskaa Engineering, LLP (hereinafter collectively the third-party defendants), established their prima facie entitlement to judgment as a matter of law dismissing the third-party causes of action for contribution insofar as asserted against each of them. The plaintiff in the main action alleged purely economic loss resulting from a breach of contract, which does not constitute injury to property within the meaning of CPLR 1401 (see Board of Educ. of Hudson City School Dist. v. Sargent, Webster, Crenshaw & Folley, 71 N.Y.2d 21, 26, 523 N.Y.S.2d 475, 517 N.E.2d 1360 ; Kiss Constr., Inc. v. Edison Elec. Contrs., Corp., 152 A.D.3d 575, 58 N.Y.S.3d 524 ; Chatham Towers, Inc. v. Castle Restoration & Constr. Inc., 151 A.D.3d 419, 56 N.Y.S.3d 74 ; Eisman v. Village of E. Hills, 149 A.D.3d 806, 52 N.Y.S.3d 115 ; Galvin Bros., Inc. v. Town of Babylon, N.Y., 91 A.D.3d 715, 936 N.Y.S.2d 563 ; Children's Corner Learning Ctr. v. A. Miranda Contr. Corp., 64 A.D.3d 318, 879 N.Y.S.2d 418 ; Tower Bldg. Restoration v. 20 E. 9th St. Apt. Corp., 295 A.D.2d 229, 744 N.Y.S.2d 319 ). The plaintiff's tort causes of action alleging negligence, professional negligence, and negligent misrepresentation are based upon allegations that the defendants did not perform their contractual obligations, which sound in breach of contract (see Board of Mgrs. of Soho N. 267 W. 124th St. Condominium v. NW 124 LLC, 116 A.D.3d 506, 984 N.Y.S.2d 17 ). "Where a plaintiff's direct claims against a [co-defendant] seek only a contractual benefit of the bargain recovery, their tort language notwithstanding, contribution is unavailable" (see Trump Vil. Section 3 v. New York State Hous. Fin. Agency, 307 A.D.2d 891, 897, 764 N.Y.S.2d 17 ). In opposition, the defendant third-party plaintiff, Branded Concept Development, Inc. (hereinafter Branded Concept), failed to raise a triable issue of fact
Further, the third-party defendants established their prima facie entitlement to judgment as a matter of law dismissing the third-party causes of action for common-law and contractual indemnification insofar as asserted against each of them, and in opposition, Branded Concept failed to raise a triable issue of fact (see Chatham Towers, Inc. v. Castle Restoration & Const., Inc., 151 A.D.3d 419, 56 N.Y.S.3d 74 ; cf. Crutch v. 421 Kent Dev., LLC, 192 A.D.3d 982, 146 N.Y.S.3d 151 ).
Branded Concept's remaining contentions are without merit.
DILLON, J.P., HINDS–RADIX, CHRISTOPHER and ZAYAS, JJ., concur.