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

• Decision Date: 28 April 1988
• Citation: 528 N.Y.S.2d 516,71 N.Y.2d 599,523 N.E.2d 803
• 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.)
• Court: New York Court of Appeals Court of Appeals

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 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, ³ the Appellate Division noted that the only duty owed by Consultants was in connection with the advice it gave to Facilities after the construction job was complete, and that, "even assuming a breach of that duty, it could not be a contributing cause to any recoverable damages in this case" (125 A.D.2d 754, 756, 509 N.Y.S.2d 177). The sole question is whether Celotex has pleaded a valid claim for contribution under any theory against Consultants. Because we agree with the Appellate Division that it has not, the order of that court should be affirmed.

II

The applicable rules governing contribution under Dole v. Dow Chem. Co. 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288, may be quickly summarized. The basic requirement for contribution under Dole, now codified in CPLR 1401, is that the culpable parties must be "subject to liability for damages for the same personal injury, injury to property or wrongful death" (emphasis added) ( see, Guzman v. Haven Plaza Hous. Dev. Fund Co., 69 N.Y.2d 559, 568, 516 N.Y.S.2d 451, 509 N.E.2d 51; Garrett v. Holiday Inns, 58 N.Y.2d 253, 258, 460 N.Y.S.2d 774, 447 N.E.2d 717; 2A Weinstein-Korn-Miller, N.Y.Civ.Prac. pp 1401.10a, 1401.10b). Under Dole and CPLR article 14, a claim for contribution will lie whether or not the culpable parties are allegedly liable for the injury under the same or different theories ( see, Board of Educ. v. Sargent, Webster, Crenshaw & Folley, 71 N.Y.2d 21, 28, 523 N.Y.S.2d 475, 517 N.E.2d 1360; McLaughlin, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR 1401, at 362), and whether or not the party from whom contribution is sought is allegedly responsible for the injury as a concurrent, successive, independent, alternative, or even intentional tort-feasor ( see, Board of Educ. v. Sargent, Webster, Crenshaw & Folley, supra, at 27, 523 N.Y.S.2d 475, 517 N.E.2d 1360; Schauer v. Joyce, 54 N.Y.2d 1, 5, 444 N.Y.S.2d 564, 429 N.E.2d 83; Siegel, N.Y.Prac. § 172, at 213; see, McLaughlin, Practice Commentaries, op. cit., at 362-363).

While the culpable party from whom contribution is sought will ordinarily have breached a duty owed...