Edgewater Apartments, Inc. v. Flynn

• Decision Date: 06 January 2000
• Parties: 2000 N.Y. Slip Op. 42 EDGEWATER APARTMENTS, INC., Plaintiff, v. John J. FLYNN, et al., Defendants-Respondents, and Structural Maintenance & Contracting Company, Inc., Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 357

701 N.Y.S.2d 357

2000 N.Y. Slip Op. 42

EDGEWATER APARTMENTS, INC., Plaintiff, v. John J. FLYNN, et al., Defendants-Respondents, and Structural Maintenance & Contracting Company, Inc., Defendant-Appellant.

Supreme Court, Appellate Division, First Department, New York.

Jan. 6, 2000.

Thomas J. Graham, for Defendants-Respondents.

William E. Fay, III, for Defendant-Appellant.

SULLIVAN, J.P., MAZZARELLI, WALLACH, RUBIN and ANDRIAS, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered November 26, 1997, dismissing defendant-appellant's cross claim (deemed to be a third-party complaint) against defendants-respondents, unanimously affirmed, with costs.

Supreme Court correctly held that appellant's claim for contribution against respondents was precluded by CPLR 1401 to the extent plaintiff's claims against appellant sounded in breach of contract (see, Board of Educ. v. Sargent, Webster, Crenshaw & Folley, 71 N.Y.2d 21, 523 N.Y.S.2d 475, 517 N.E.2d 1360), and by General Obligations Law § 15-108(b) to the extent plaintiff's claims against appellant sounded in negligence, respondents having settled with plaintiff after the action was reinstated against them on appeal (216 A.D.2d 53, 627 N.Y.S.2d 385). Because respondents were initially dismissed out of the case before their relative fault for plaintiff's damages, if any, had been determined, appellant's satisfaction of the judgment against it could not have been in excess of its equitable share (see, CPLR 1402). Appellant paid only what it had been found liable for by the jury (compare, Cover v. Cohen, 113 A.D.2d 502, 497 N.Y.S.2d 382).