Richards Plumbing & Heating Co., Inc. v. Washington Group International, Inc.

• Decision Date: 24 February 2009
• Docket Number: 5381.
• Citation: 874 N.Y.S.2d 410,2009 NY Slip Op 01359,59 A.D.3d 311
• Parties: RICHARDS PLUMBING & HEATING CO., INC., Plaintiff, v. WASHINGTON GROUP INTERNATIONAL, INC., et al., Defendants. WASHINGTON GROUP INTERNATIONAL, INC., Third-Party Plaintiff-Appellant, v. OFFICE FOR ARCHITECTURE, PLANNING, DESIGN, P.C., et al., Third-Party Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

59 A.D.3d 311

874 N.Y.S.2d 410

2009 NY Slip Op 01359

RICHARDS PLUMBING & HEATING CO., INC., Plaintiff, v. WASHINGTON GROUP INTERNATIONAL, INC., et al., Defendants.

WASHINGTON GROUP INTERNATIONAL, INC., Third-Party Plaintiff-Appellant, v. OFFICE FOR ARCHITECTURE, PLANNING, DESIGN, P.C., et al., Third-Party Defendants-Respondents.

5381.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided February 24, 2009.

Order, Supreme Court, Bronx County (Dianne T. Renwick, J.), entered on or about October 29, 2007, which granted third-party defendants' motion to dismiss the third-party complaint, unanimously affirmed, without costs.

This action arises out of a dispute concerning construction of a retirement facility owned by defendant the Home for the Aged for the Little Sisters of the Poor of the City of New York (owner). Pursuant to separate contracts with the owner, third-party plaintiff was the construction manager on the project and third-party defendants were the architect.

Plaintiff subcontractor brought an action against the construction manager and owner alleging nonpayment for work performed, and the owner asserted cross claims against the construction manager for breach of contract, consisting, inter alia, of failing to provide strict oversight and causing delays on the project. The construction manager then brought a third-party action against the architect asserting claims for common-law indemnification and contribution based on the architect's alleged failure to properly perform its work and obtain the necessary permits and approvals for the project, resulting in delays and increased costs.

The court properly dismissed the construction manager's third-party claim for common-law indemnification since plaintiff's claims and the owner's cross claims allege breach of contract by the construction manager, not vicarious liability attributed solely to the fault of the architect (see Trustees of Columbia Univ. v Mitchell/Giurgola Assoc., 109 AD2d 449, 453 [1985] ["(s)ince the predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee, it follows that a party who has itself actually participated to some degree in the wrongdoing cannot receive the benefit of the doctrine"]). Although the construction manager argues that it was entitled to indemnity because its relationship with the architect was so close as to approach that of privity (see e.g. Ossining Union...