Opinion
2014-03452
12-10-2014
Juan PONCE, et al., plaintiffs, v. MIAO LING LIU, defendant third-party plaintiff-appellant; Nexa Gomez, third-party defendant-respondent.
The McCauley Law Firm, LLP, New York, N.Y. (David F. Tavella of counsel), for defendant third-party plaintiff-appellant. Roy Silverberg, Elmhurst, N.Y., for third-party defendant-respondent.
The McCauley Law Firm, LLP, New York, N.Y. (David F. Tavella of counsel), for defendant third-party plaintiff-appellant.
Roy Silverberg, Elmhurst, N.Y., for third-party defendant-respondent.
JOHN M. LEVENTHAL, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and SHERI S. ROMAN, JJ.
Opinion In an action to recover damages for personal injuries, etc., the defendant third-party plaintiff appeals from an order of the Supreme Court, Queens County (McDonald, J.), dated December 24, 2013, which granted that branch of the motion of the third-party defendant which was pursuant to CPLR 3211(a)(7) to dismiss the third-party complaint.
ORDERED that the order is affirmed, with costs.
On a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the court must afford the pleading a liberal construction, accept the facts alleged in the pleading as true, accord the pleader the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; Lizjan, Inc. v. Sahn Ward Coschignano & Baker, PLLC, 117 A.D.3d 914, 915, 985 N.Y.S.2d 887 ). “[E]videntiary material may be considered to ‘remedy defects in the [pleading]’ ” (Dana v. Shopping Time Corp., 76 A.D.3d 992, 994, 908 N.Y.S.2d 114, quoting Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 636, 389 N.Y.S.2d 314, 357 N.E.2d 970 ; see Leon v. Martinez, 84 N.Y.2d at 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; Way v. City of Beacon, 96 A.D.3d 829, 830–831, 947 N.Y.S.2d 531 ).
Here, the allegations in the third-party complaint, even as amplified by the evidentiary material submitted in opposition to the third-party defendant's motion, were insufficient to state a cause of action for indemnification. “[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 ). The third-party complaint does not allege the existence of any duty owed by the third-party defendant to the defendant third-party plaintiff (see Raquet v. Braun, 90 N.Y.2d at 183, 659 N.Y.S.2d 237, 681 N.E.2d 404 ; Greenberg v. Blake, 117 A.D.3d 683, 684, 985 N.Y.S.2d 279 ; Balkheimer v. Spanton, 103 A.D.3d 603, 604, 959 N.Y.S.2d 697 ; Seldin v. Smith, 76 A.D.3d 623, 625, 907 N.Y.S.2d 36 ). Moreover, the third-party complaint, as supplemented by the evidentiary material, also failed to state a cause of action for contribution (see Raquet v. Braun, 90 N.Y.2d at 183, 659 N.Y.S.2d 237, 681 N.E.2d 404 ; Seldin v. Smith, 76 A.D.3d at 625, 907 N.Y.S.2d 36 ).
The defendant third-party plaintiff's remaining contentions are either without merit, or not properly before this Court.
Accordingly, the Supreme Court properly granted that branch of the third-party defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the third-party complaint.