Great Am. Ins. Cos. v Bearcat Fin. Servs., Inc.

Great Am. Ins. Cos. v Bearcat Fin. Servs., Inc. 2011 NY Slip Op 09168 Decided on December 20, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 20, 2011
Gonzalez, P.J., Mazzarelli, Andrias, Sweeny, Román, JJ.
6375 103565/08 590789/09

[*1]Great American Insurance Companies, et al., Plaintiffs, ——

v

Bearcat Financial Services, Inc., et al., Defendants, _ _ _ _ _



Patrick Hayes, Third-Party Plaintiff-Appellant,

v

Dresdner, Kleinwort, Wasserstein Services, LLC, Third-Party Defendant-Respondent.




Law Offices of Peter A. Hurwitz, PLLC, New City (Peter A.
Hurwitz of counsel), for appellant.
Orrick, Herrington & Sutcliffe LLP, New York (Ayanna
Lewis-Gruss of counsel), for respondent.

Order, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered May 3, 2010, which, to the extent appealed from as limited by the briefs, granted the motion of third-party defendant Dresdner to dismiss the third-party complaint, award Dresdner its costs, and impose sanctions on defendant/third-party plaintiff Hayes and his counsel, unanimously affirmed, with costs.

Because the first-party complaint alleges that Hayes is liable based only on his own wrongdoing, his third-party claim that he is entitled to common-law indemnification from Dresdner does not state a cause of action (Mathis v Central Park Conservancy, 251 AD2d 171, 172 [1998]). Accordingly, the third-party complaint was properly dismissed.

Because the third-party claim was plainly defective, the motion court providently exercised its discretion in determining that it was frivolous and imposing sanctions and costs (see 22 NYCRR 130-1.1; Pickens v Castro, 55 AD3d 443 [2008]).

We have considered Hayes's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 20, 2011

CLERK