Trustees of Columbia University in City of N.Y. v. Mitchell/Giurgola Associates

• Decision Date: 25 July 1985
• Citation: 492 N.Y.S.2d 371,109 A.D.2d 449
• Parties: , 26 Ed. Law Rep. 1164, Prod.Liab.Rep. (CCH) P 10,745 The TRUSTEES OF COLUMBIA UNIVERSITY IN the CITY OF NEW YORK, Plaintiff, v. MITCHELL/GIURGOLA ASSOCIATES, Defendant and Skilling, Helle, Christiansen, Robertson, P.C., Defendant-Appellant and Teeco Properties, L.P., Defendant and Bergen County Cut Stone Co., Inc., Consolidated Stone Setters, Inc., Defendants and Third-Party Plaintiffs-Appellants, and Certified Testing Laboratories, Inc. United States Testing Co., Inc., Defendants, and Exposaic Industries, Inc., Defendant-Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 371

492 N.Y.S.2d 371

109 A.D.2d 449, 26 Ed. Law Rep. 1164,

Prod.Liab.Rep. (CCH) P 10,745

The TRUSTEES OF COLUMBIA UNIVERSITY IN the CITY OF NEW YORK, Plaintiff, v. MITCHELL/GIURGOLA ASSOCIATES, Defendant and Skilling, Helle, Christiansen, Robertson, P.C., Defendant-Appellant and Teeco Properties, L.P., Defendant and Bergen County Cut Stone Co., Inc., Consolidated Stone Setters, Inc., Defendants and Third-Party Plaintiffs-Appellants and Certified Testing Laboratories, Inc. United States Testing Co., Inc., Defendants and Exposaic Industries, Inc., Defendant-Third-Party Defendant-Respondent.

Supreme Court, Appellate Division First Department.

July 25, 1985.

Lester Esterman, New York City, of counsel (Hart & Hume, New York City, attorneys), for defendant-appellant.

Lewis I. Wolf, Brooklyn, of counsel (Smith, Mazure, Director & Wilkins, New York City, attorneys), for defendants and third-party plaintiffs-appellants.

Charles V. Choyce, Jr., Atlanta, Ga., of counsel (Sutton Keany, Aileen Meyer and Herman L. Fussell, Atlanta, Ga., with him on the brief; Winthrop, Stimson, Putnam & Roberts, New York City, and Stokes, Shapiro, Fussell & Genberg, Atlanta, Ga., attorneys), for Exposiac Industries, Inc.

Before MURPHY, P.J., and SULLIVAN, CARRO, LYNCH and ELLERIN, JJ.

ELLERIN, Justice.

This action arises out of the construction at Columbia University of the Sherman Fairchild Center for Life Sciences, which was completed in 1977, and involves claimed defects in the exterior "curtain wall" of the building and the tiles attached to that wall. In the summer of 1980, after a tile fell from the wall, Columbia took emergency safety measures and ordered an inspection of the building which revealed not only that the tiles were not properly attached to the wall but that the entire wall was in imminent danger of collapse. Columbia thereafter engaged consultants and had extensive repairs made in order to put the building into a safe condition. It commenced the instant action in May 1983 seeking to recover damages for the expenditures incurred in the sum of $600,000 against, inter alia, the structural engineering consultants, Skilling, Helle, Christiansen, Robertson, P.C. ("Skilling"); the installers of the curtain wall and tiles, Bergen County Cut Stone Co., Inc. ("Bergen"), and Consolidated Stone Cutters, Inc. ("Consolidated"); and the supplier of the curtain wall and tiles, Exposaic Industries, Inc. ("Exposaic").

Bergen had entered into a contract with the owner Columbia (through its agent-construction manager, Tishman Co.) to perform a portion of the construction work. It undertook to furnish and install all precast concrete, limestone and granite for the Center including the subject "curtain" wall. That contract contained a guarantee by Bergen of materials and workmanship for two years from the date of completion and a provision that it would repair or replace any defective work found during that period. Consolidated was thereafter engaged by Bergen to actually perform the installation of the curtain wall and tiles, and Bergen contracted with Exposaic, in 1975, for the fabrication and supplying of the precast concrete panels and facing tiles for the wall. The Bergen-Exposaic contract included a guaranty by Exposaic of all materials and workmanship for a period of one year, and a disclaimer of responsibility for repair or replacement of goods accepted by Bergen County. Exposaic last delivered materials pursuant to this contract in November 1976.

In their answers, various cross-claims were asserted by the several defendants including claims by each of the defendants-appellants for recovery over against Exposaic on the basis of both indemnity and contribution.

After joinder of issue, Exposaic moved for summary judgment dismissing so much of plaintiff's complaint as alleged causes of action against it based on breach of contract, negligence and strict products liability theories. Special Term granted Exposaic's motion in its entirety finding that the breach of contract cause was time-barred and that the remaining negligence and strict liability causes were not actionable under the authority of Schiavone Construction Co. v. Elgood Mayo Corp., 56 N.Y.2d 667, 451 N.Y.S.2d 720, 436 N.E.2d 1322, rev'g on dissenting opinion of Silverman, J., 81 A.D.2d 221, 227-34, 439 N.Y.S.2d 933, because they were seeking a recovery against a remote manufacturer, not in privity with plaintiff, for what the court concluded was economic loss resulting from the product's failure to function properly, rather than physical damage to persons or property.

Defendants Bergen and Consolidated thereafter served a joint third-party summons and complaint against Exposaic (in place of their prior cross-claims) once again alleging causes of action for indemnity and contribution. After answering the third party pleading, Exposaic brought the instant motion for summary judgment, this time seeking dismissal of the third-party complaint and the outstanding cross-claims of the structural engineering consultant, Skilling, and the architect, Mitchell/Giurgola Associates.

Special Term finding that the various defendants had no right to either indemnity or contribution against Exposaic, granted its motion for summary judgment dismissing the third-party complaint and the cross-claims. All defendants, except the architect Mitchell/Giurgola, have appealed.

We agree that the claims seeking indemnity were properly dismissed. Indemnity involves an attempt to shift the entire loss from one who is compelled to pay for a loss, without regard to his own fault, to another party who should more properly bear responsibility for that loss because it was the actual wrongdoer. The right to indemnification may be created by express contract, or may be implied by law to prevent an unjust enrichment or an unfair result. (County of Westchester v. Welton Becket Assoc., 102 A.D.2d 34, 46-48, 478 N.Y.S.2d 305.)

In this case neither the joint third-party complaint of Bergen and Consolidated, nor the cross-claim of Skilling, alleges a right of indemnification by way of an express contract of indemnity with Exposaic. Indeed, Bergen is the only one of the defendants with whom Exposaic had any contractual relationship and that agreement contained a provision wherein Exposaic expressly disclaimed any responsibility for Bergen's liability to others.

The Bergen-Consolidated claim for indemnity is couched in terms of Exposaic's active/primary negligence and defendants' passive/secondary negligence while Skilling seeks such relief based upon allegations of the "culpable conduct" of others, including Exposaic, without any culpable conduct on Skilling's part. These characterizations are reflective of the criteria upon which common law indemnity or indemnity implied by law have been predicated in the past.

Historically, common-law indemnity had its roots in principles of equity and fairness recognizing that one who was compelled to pay for the wrong of another should be allowed to recover from the actual wrongdoer the damages paid to the injured party. (McDermott v. City of N.Y., 50 N.Y.2d 211, 428 N.Y.S.2d 643, 406 N.E.2d 460; Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola, 134 N.Y. 461, 31 N.E. 987.) In the classic indemnification case, the one entitled to indemnity from another had committed no wrong, but by virtue of some relationship with the tortfeasor (such as master and servant) or some obligation imposed by law, (such as the non-delagable duty imposed on a landlord under the Multiple Dwelling Law) was nevertheless held liable to the injured party. Under such circumstances a contract was implied by law for full reimbursement or indemnification of the one held vicariously liable by the actual tortfeasor.

In its early stages common law or implied indemnity was essentially confined to the classic vicarious liability patterns. Its subsequent development, however, was colored by the need to ameliorate the harsh effects of the then controlling inflexible rules against contribution or apportionment among joint tortfeasors and this objective led the law of indemnity into the oftimes arcane spheres of active and passive negligence, acts of omission and commission, primary and secondary wrongdoers and ultimately into somewhat esoteric evaluations of relative degrees of fault or the "factual disparity between the delinquency" of the several tortfeasors, all in the quest to shift total responsibility for the wrong to the one whose negligence or fault was the greater. These often strained efforts to mold implied indemnity into a...