Cabrera v 2426 Univ. Ave. Realty, LLC
Annotate this CaseDecided on November 2, 2006
Supreme Court, Bronx County
Luis Cabrera, an infant under the age of fourteen by his mother and natural guardian, Yahisa Perez, and Yahisa Perez, individually, Plaintiffs,
against
2426 University Avenue Realty, LLC, Defendant. 2426 University Avenue Realty, LLC, Third-Party Plaintiff, Credo Enterprises, Inc., Third-Party Defendant.
23046/2003
Dianne T. Renwick, J.
After plaintiff commenced this personal injury action against 2426 University Avenue Realty, defendant commenced a third-party action against Credo Enterprises, Inc. Defendant and third party defendant are, respectively, the current owner and former owner of the premises where plaintiff was allegedly injured. Third-party defendant Credo Enterprises, Inc. now moves for a dismissal of the third-party complaint as barred by General Obligations Law upon plaintiff's settlement of a separate personal injury action commenced against third-party defendant, stemming from the same accident from which this action emanates.
[*2]Factual and Procedural Background
In 2001, plaintiff Yahisa Perez commenced a personal injury action under Index No. 24896 /2001 (Action No.1) on behalf of her son, Luis Cabrera, and against Credo Enterprises, Inc., among others. The action stems from an accident that took place on June 5, 2001, when the injured plaintiff fell from an apartment window to the ground below, at the premises located at 2426 University Avenue, Apt. 1S, Bronx, New York. In 2003, plaintiff settled the action against defendant for $560,000.
The same year that plaintiff settled the aforementioned action, plaintiff commenced a second personal injury action under Index No. 23046/2006, against defendant 2426 University Avenue Realty, stemming from the same window falling accident from which Action No.1 emanated. Action No. 2 defendant 2426 University Avenue Realty then commenced a third-party action against Action No. 1 defendant Credo Enterprises, Inc., for common law contribution and indemnification.
Third-Party defendant Credo Enterprises, Inc. now moves for a dismissal of the third-party action asserted against it by defendant-third-party plaintiff, 2426 University Avenue Realty, on the ground that plaintiff's settlement of Action No.1 with third-party defendant precludes the third party action, pursuant to General Obligations Law, §15-108.
Discussion
General Obligations Law §15-108 governs the effect of a release or covenant not to sue. A party who settles with a plaintiff cannot afterwards seek contribution in respect to a plaintiff's injuries from any other tortfeasor. General Obligations Law §15-108(b). By the same token, the settlement immunizes the settling party from any contribution claim by any other tortfeasor in respect to a plaintiff's injuries. General Obligations Law §15-208(b). Since the statute applies only to the right of contribution between tortfeasors and has no effect on any right to indemnity, which may exist between the parties, a released tortfeasor may remain liable to a co-defendant under the theory of indemnification, should the facts so warrant. See McDermott v. City of New York, 50 N.Y2d 211 (1980); Riviello v. Waldron, 47 NY2d 297 (1979). Contribution is the right of a wrongdoer who has paid the injured's person's damages to make other wrongdoers contribute to what has been paid. Id.
Indemnity, on the other hand, involves an attempt to shift the entire loss from one who is compelled to pay for a loss, without regard to his own fault, to another person who should more properly bear responsibility for that loss because he was the actual wrongdoer. See generally, D'Ambrosio v. City of New York, 55 NY2d 454 (1982). Indemnification springs conceptually from principles of equity and finds its expression in contract, express or implied. McDermott v. City of New York, 50 NY2d 211, 216-217. It is nothing short of simple fairness to recognize that a person who in whole or in part has discharged a duty which is owed by him but which as between himself and another should have been discharged by the other, is entitled to indemnity. Id. See also Riviello v. Waldron, 47 NY2d 297. Thus, for example, an employer may be held liable for the wrongdoing of his employee, the owner of a vehicle may be held responsible for the tortious operation of the vehicle by another which results in injury, or an owner of property may be held liable for the wrongdoing of his contractor. McDermott v. City of New York, 50 NY2d 211; Rock v. Reed-Prentice Div. Of Package Machinery Co., 39 NY2d 34 (1976).
The statute disentitling a non-settling tortfeasor or insulating a settling tortfeasor from [*3]contribution cannot be evaded merely by characterizing the claim owed as one for indemnification, if the claim is, in reality, one for contribution. A proper basis for the claim must be stated. Siffin v. Rambuski, 87 AD2d 979 (4th Dept. 1992). A party seeking indemnification must show that s/he may not be held responsible in any degree for causing the harm or accident. Rosado v. Proctor & Schwartz, Inc., 66 NY2d 21 (1985). If the party shares in responsibility for the injury, then the claim is, in fact, a claim for contribution which is barred by settlement of the underlying personal injury action. See Aetna Life & Casualty Co. v. Blue Bird Coach Co., 140 AD2d 476 (2nd Dept. 1988).
For example, in Glaser v. M. Fortunoff of Westbury Corp., 71 NY2d 643 (1988), the court held that the claim was barred by General Obligations Law §15-108. In Glasser, the defendant store owner averred claims for contribution and indemnification against physicians who allegedly committed malpractice in treating the plaintiff customer, following the customer's slip and fall in the store. The Glaser court held that the claims were barred by General Obligations Law §15-108, once the defendant had settled with the plaintiff. The Glaser court held that such claims were ones in the nature of contribution, not indemnification, since as the initial tortfeasor, the store owner was liable not only for the any injuries the customer may have sustained because of her slip and fall, but also any aggravation of her injuries resulting from the subsequent negligent treatment, while the physician was liable for the aggravation.
Similarly, in Grovenger v. Laboratory Procedures, Inc., 132 AD2d 289 (3rd Dept. 1987), the court held that the claim was barred by General Obligations Law 25-108. Grovenger involved an action against a health maintenance organization (HMO) for personal injury and wrongful death arising from a mis-diagnosis of a malignant tumor by an HMO physician and by the laboratory that conducted the pathological testing. The Grovenger court held that once the plaintiff had settled a claim against the laboratory, the HMO's claim against the laboratory were barred by General Obligations Law §15-108. The Grovenger court relied upon facts that: (1) the laboratory's pathology report did not state that the lesion was benign, but only that such tissue was usually benign, and (2) the HMO physician, in reading the report stated that the lesion was benign. Since the HMO was being charged with the negligence of its own employees, not vicariously with the negligence of the laboratory, its claims against the laboratory were in the nature of claims for contribution rather than for indemnity, the Grovenger court concluded. Id.
In this case, third-party plaintiff 2426 University Avenue Realty, LLC, avers in conclusory fashion that it seeks a claim for indemnification, rather than contribution, from third-party defendant Credo Enterprises, Inc. However, upon a review of the complaints in plaintiff's Action No. 1 and Action 2, and the third-party complaint, this Court fails to perceive any conceivable claim for indemnification available to third-party plaintiff against Credo Enterprises, Inc. Specifically, there is no factual allegation of any kind that the third-party plaintiff is being held responsible for any wrong committed by third-party defendant. Rather, the discernable claim made by plaintiff is not that the defendant-third-party plaintiff is vicariously responsible based solely upon its relationship with the actual wrongdoer, but that it is the actual wrongdoer.
Nevertheless, at this time, this Court gives third-party defendant the benefit of the doubt. Accordingly, the Court orders a hearing for a determination of whether the third-party complaint is frivolous as barred by General Obligations Law §15-108. This Court, however, puts third-party plaintiff 2426 University Avenue Realty, LLC on notice that it has the onus at the hearing [*4]to establish that it has a plausible indemnification claim, on the facts and the law, against third-party defendant Credo Enterprises, Inc. Failure to meet this burden will subject third-party defendant to costs and sanction. Of course, third-party plaintiff may obviate this risk by executing a stipulation dismissing the third-party action, at any time prior to the scheduled date of the hearing.
Conclusion
For the foregoing reasons, third-party defendant's motion, seeking a dismissal of the third-party complaint and for cost and sanctions against third-party plaintiff, for asserting a frivolous claim, as barred by General Obligations Law 25-108, is granted to the extent of ordering a hearing for a determination of whether the third-party complaint is frivolous. The hearing shall take place at Supreme Court, Bronx County, Part IA-1, at 851 Grand Concourse, Bronx, New York, Room 809, at 10:00 A.M., on the 2th day of December, 2006. Third-party defendant shall serve a copy of this Order upon third-party plaintiff's counsel, on or before November 14, 2006.
This constitutes the Decision and Order of this Court.
Dated: November 2, 2006__________________________
Bronx, New YorkHon. Dianne T. Renwick, JSC
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