Nassau Roofing & Sheet Metal Co., Inc. v. Facilities Development Corp.

CourtNew York Court of Appeals
Writing for the CourtHANCOCK; WACHTLER
Citation528 N.Y.S.2d 516,71 N.Y.2d 599,523 N.E.2d 803
Decision Date28 April 1988
Parties, 523 N.E.2d 803 NASSAU ROOFING & SHEET METAL CO., INC., Plaintiff, v. FACILITIES DEVELOPMENT CORPORATION, Formerly Health and Mental Hygiene Facilities Improvement Corporation, Respondent, et al., Defendants; Celotex Corporation, Defendant and Third-Party Plaintiff-Appellant, and Construction Consultants, Inc., Third-Party Defendant-Respondent. (And Another Third-Party Action.)

Page 516

528 N.Y.S.2d 516
71 N.Y.2d 599, 523 N.E.2d 803
NASSAU ROOFING & SHEET METAL CO., INC., Plaintiff,
v.
FACILITIES DEVELOPMENT CORPORATION, Formerly Health and
Mental Hygiene Facilities Improvement Corporation,
Respondent, et al., Defendants;
Celotex Corporation, Defendant and Third-Party Plaintiff-Appellant,
and
Construction Consultants, Inc., Third-Party Defendant-Respondent.
(And Another Third-Party Action.)
Court of Appeals of New York.
April 28, 1988.

Dan M. Rice, Craig M. Nisnewitz and Michael S. Torre, New York City, for defendant and third-party plaintiff-appellant.

John Carter Rice, Edward M. Douglas and Charles B. Stockdale, Albany, for third-party defendant-respondent.

Robert Abrams, Atty. Gen. (Richard J. Dorsey, O. Peter Sherwood and Peter H. Schiff, Albany, of counsel), for respondent.

OPINION OF THE COURT

HANCOCK, Judge.

When a newly installed roof failed, a construction consultant advised the owner that it must be removed and replaced. The consultant claimed the cause was defective insulation and that the supplier of the insulation should pay the cost of replacing the roof. The insulation supplier, however, contended that the insulation was not defective, that the roof was sound, and the construction consultant at fault for erroneously advising the owner that the roof required replacement. In an action to determine

Page 517

the ultimate responsibility for the cost of replacing the roof, does the insulation supplier have a valid claim for Dole contribution against the construction consultant? This is the question raised by Celotex Corporation, the insulation supplier, in its appeal from an order of the Appellate Division which affirmed Special Term's dismissal, pursuant to CPLR 3211(a)(7), of Celotex's third-party action against Construction Consultants, Inc. (Consultants). For reasons which follow, we conclude that Celotex has no claim for contribution. The order, therefore, should be affirmed.
I

The roof system, which allegedly failed and gives rise to this litigation, was installed on the Lincoln Hospital in The Bronx by plaintiff Nassau Roofing and Sheet Metal Company pursuant to a contract with Facilities Development Corporation (Facilities), the public benefit corporation responsible for construction work on the hospital. Nassau Roofing purchased the insulation for the job from Celotex. After the job was completed, damage to the roof assertedly resulted from the excessive coefficient of expansion of the polyurethane insulation supplied by Celotex. Facilities retained third-party defendant Consultants which advised it that the roof must be entirely removed and replaced. When Nassau Roofing refused to replace the roof, Facilities hired another contractor to do so at a cost of $1,500,000.

Nassau then commenced the instant action against Facilities and various subcontractors and materialmen as defendants, including Celotex. Nassau seeks, among other things, a declaration that it is not responsible for the cost of replacing the roof or, if it is found liable to Facilities for such cost, it should have contribution or indemnification from Celotex, which allegedly caused the damage by supplying Nassau with defective insulation. Facilities counterclaimed against Nassau for the cost of replacing the roof and cross-claimed against Celotex for breach of warranty and strict products liability. Certain codefendants have interposed cross claims for contribution or indemnity on various theories against Celotex. Based on the several claims lodged against it, Celotex commenced a third-party action seeking Dole contribution from Consultants for the cost of replacing the roof. 1 The record contains no complaint by Facilities against Consultants and there is no indication that such an action has been commenced. Celotex contends, however, that the damages suffered by Facilities were caused by the "negligence, fault and/or wrongdoing" of Consultants in advising Facilities that the roof required replacement. 2

In affirming Special Term's dismissal of Celotex's third-party claim, ...

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113 practice notes
  • Mar–Cone Appliance Parts Co. v. Mangan, No. 10–CV–999A.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • July 20, 2012
    ...party ... had a part in causing or augmenting the injury for which contribution is sought.” Nassau Roofing & Sheet Metal Co., 528 N.Y.S.2d 516, 523 N.E.2d at 805 (1988). A fair reading of Mangan's First claim indicates that nowhere does Mangan allege any facts which, assuming their truth, p......
  • Firestone v. Berrios, No. 12–cv–0356 ADSARL.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • January 22, 2013
    ...sought.' ” Raquet, 90 N.Y.2d at 183, 659 N.Y.S.2d 237, 681 N.E.2d 404 (quoting Nassau Roofing & Sheet Metal Co. v. Facilities Dev. Corp., 71 N.Y.2d 599, 603, 528 N.Y.S.2d 516, 523 N.E.2d 803 (1988) ). Put another way, there must be some jural relationship between the allegedly tortious acti......
  • Crews v. County of Nassau, No. 06-CV-2610 (JFB)(WDW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 23, 2009
    ...517 N.E.2d 1360 (1987), who have caused the `same injury' to plaintiff. Nassau Roofing & Sheet Metal Co. v. Facilities Development Corp., 71 N.Y.2d 599, 603, 528 N.Y.S.2d 516, 518, 523 N.E.2d 803 (1988)." LNC Invs., Inc., 935 F.Supp. at 1346. Defendants seek to implead Majid for contributio......
  • Sheehy v. New Century Mortg. Corp., No. 08-CV-377 (JFB)(MLO).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • February 19, 2010
    ...Folley, 71 N.Y.2d 21, 523 N.Y.S.2d 475, 517 N.E.2d 1360, 1364 (1987) and Nassau Roofing & Sheet Metal Co. v. Facilities Development Co., 71 N.Y.2d 599, 528 N.Y.S.2d 516, 523 N.E.2d 803, 805 (1988) (internal quotations omitted)). However, indemnity is different than contribution because it i......
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102 cases
  • In re CBI Holding Co., Inc., Bankruptcy No. 94-B-438129(BRL). No. 01-CIV-0131 (KMW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • June 30, 2004
    ...New York's General Obligations Law, § 15-108(c), is misguided. See, e.g., Nassau Roofing & Sheet Metal Co. v. Facilities Dev't Corp., 71 N.Y.2d 599, 604, 528 N.Y.S.2d 516, 523 N.E.2d 803 (1988) (no claim for contribution where injuries are separate and IV. Conclusion For the reasons sta......
  • Johnson v. Johnson Chemical Co., Inc.
    • United States
    • New York Supreme Court — Appellate Division
    • October 13, 1992
    ...against it as well (see, Nassau Roofing & Sheet Metal Co. v. Facilities Development Corp., 125 A.D.2d 754, 509 N.Y.S.2d 177, aff'd, 71 N.Y.2d 599, 528 N.Y.S.2d 516, 523 N.E.2d 803; cf., Garrett v. Holiday Inns, 58 N.Y.2d 253, 460 N.Y.S.2d 774, 447 N.E.2d In accordance with the foregoing......
  • Santoro v. Poughkeepsie Crossings, LLC, 2018–00002
    • United States
    • New York Supreme Court Appellate Division
    • December 11, 2019
    ...causing or augmenting the injury for which contribution is sought" ( Nassau Roofing & Sheet Metal Co. v. Facilities Dev. Corp., 71 N.Y.2d 599, 603, 528 N.Y.S.2d 516, 523 N.E.2d 803 ). "To sustain a third-party cause of action for contribution, a third-party plaintiff is requir......
  • Crews v. County of Nassau, No. 06-CV-2610 (JFB)(WDW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 23, 2009
    ...N.E.2d 1360 (1987), who have caused the `same injury' to plaintiff. Nassau Roofing & Sheet Metal Co. v. Facilities Development Corp., 71 N.Y.2d 599, 603, 528 N.Y.S.2d 516, 518, 523 N.E.2d 803 (1988)." LNC Invs., Inc., 935 F.Supp. at 1346. Defendants seek to implead Majid for contri......
  • Request a trial to view additional results

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