Vision Science Research Corp. v Rheingold, Valet, Rheingold, Shkolnik & McCartney

[*1] Vision Science Research Corp. v Rheingold, Valet, Rheingold, Shkolnik & McCartney 2013 NY Slip Op 51251(U) Decided on July 31, 2013 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 31, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
570794/12.

Vision Science Research Corp., Plaintiff, - -

against

Rheingold, Valet, Rheingold, Shkolnik & McCartney, Defendant-Respondent - and- Craig Brown, Defendant-Appellant. Craig Brown, Third-party Plaintiff-Appellant, - - Rheingold, Valet, Rheingold, Shkolnik & McCartney, Third-party Defendant-Respondent.

Defendant third-party plaintiff, as limited by his brief, appeals from so much of an order of the Civil Court of the City of New York, New York County (Arthur F. Engoron, J.), entered February 28, 2011, as denied his cross motion for summary judgment on the third-party complaint and granted defendant third-party defendant's motion for summary judgment dismissing the third-party complaint.

Per Curiam.

Order (Arthur F. Engoron, J.), entered February 28, 2011, affirmed, without costs.

Summary judgment dismissal of the third-party complaint was warranted. The third-party plaintiff, having voluntarily settled the main action, was precluded from seeking indemnification from the third-party defendant for the amount of the settlement (see Midura v 740 Corp., 31 AD3d 401, 402 [2006]), in the absence of any showing that the third-party plaintiff "would have been liable to the [plaintiff] claimant, that there was no good defense, and that the settlement was in a reasonable amount" (National Union Fire Ins. Co. of Pittsburgh, Pa. v Red Apple Group, [*2]309 AD2d 657, 657 [2003]; see Chase Manhattan Bank v 264 Water St. Assocs., 222 AD2d 229, 231 [1995]).

Nor is any basis shown — pursuant to the terms of the parties' (unsigned) retainer agreement or otherwise — to impose liability upon the third-party defendant law firm for the costs incurred by its former client, the third-party plaintiff, in pursuing an unsuccessful appeal from the adverse jury verdict in the underlying litigation after third-party defendant had withdrawn as counsel without opposition (see Shaw v Manufacturers Trust Co., 68 NY2d 172, 177 [1986]; Matter of Alario v DeMarco, 149 AD2d 587, 590 [1989]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 31, 2013