Bunker v. Bunker

• Decision Date: 31 March 1981
• Parties: Mavis BUNKER, Plaintiff, v. Charles C. BUNKER, Defendant and Third-Party Plaintiff-Appellant, v. Henry A. MACCARO, Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 326

437 N.Y.S.2d 326

80 A.D.2d 817

Mavis BUNKER, Plaintiff, v. Charles C. BUNKER, Defendant and Third-Party Plaintiff-Appellant, v. Henry A. MACCARO, Third-Party Defendant-Respondent.

Supreme Court, Appellate Division, First Department.

March 31, 1981.

E. S. Clare, Commack, for defendant and third-party plaintiff-appellant.

W. P. Sullivan, Jr., Ithaca, for third-party defendant-respondent.

Before MURPHY, P. J., and SANDLER, SULLIVAN, MARKEWICH and FEIN, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County, entered August 1, 1980, dismissing defendant and third-party plaintiff's third-party action as barred by the statute of limitations, and denying his cross-motion to amend the third-party complaint affirmed with costs.

This is an appeal by the defendant and third-party plaintiff Charles E. Bunker (defendant) from an order dismissing his third-party action as time-barred and denying his cross-motion to amend the third-party complaint. The main action is by the defendant's former wife to recover monies allegedly due her under a stipulation of settlement entered into during the course of the matrimonial litigation. In his answer the defendant denied various of the allegations and asserted several affirmative defenses and counterclaims. On March 25, 1980, he commenced a third-party action against former counsel who had represented him at the time of the stipulation of settlement and thereafter until he was relieved on October 28, 1976, alleging in substance that the third-party defendant had represented defendant in an incompetent manner, and seeking indemnification in whole or in part for any sum awarded plaintiff against the defendant.

The third-party defendant moved pursuant to CPLR 3211(a)(5) for an order dismissing the third-party complaint on the ground that it was not commenced within the three year period of limitations fixed for legal malpractice actions (CPLR 214(6)). Special Term granted the motion concluding that the action was in essence one for legal malpractice and as such time-barred since not commenced within the three year period of limitations. We affirm.

The third-party complaint purports to set forth a claim for indemnification on the theory that any judgment against the defendant in the action commenced by his former wife would be a consequence of incompetent representation by the third-party defendant, and therefore the third-party defendant would be legally obligated to pay all or part of any such judgment. In an indemnity action it is, of course, well established that the period of limitations does not begin to run until the underlying claim is paid, and the applicable period of limitations is six years since the action is based upon an agreement either express or implied in law. See Siegel, New York Practice, § 162. These rules control whether an indemnity claim is based upon an alleged tort, breach of warranty or breach of contract. See McDermott v. City of New York, 50 N.Y.2d 211, 428 N.Y.S.2d 643, 406 N.E.2d 460; Bay Ridge Air Rights v. State of New York, 44 N.Y.2d 49, 404 N.Y.S.2d 73, 375 N.E.2d 29; Rogers v. Dorchester Assoc., 32 N.Y.2d 553, 347 N.Y.S.2d 22, 300 N.E.2d 403; Musco v. Conte, 22 A.D.2d 121, 254 N.Y.S.2d 589.

However, a third-party action does not become an action for indemnity merely because the pleader has so denominated it. The nature of an indemnification action based upon a contract implied in law was succinctly described by the Court of Appeals in McDermott v. City of New York, supra, at 216-217:

"Conceptually, implied indemnification finds its roots in the principles of equity. It is nothing short of simple fairness to...