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Board of Educ. of the Farmingdale Union Free School Dist. v Grillo 2010 NY Slip Op 32256(U) August 16, 2010 Supreme Court, Nassau County Docket Number: 3369-06 Judge: Stephen A. Bucaria Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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SHORT FQRM ORDER
SUPREME COURT - STATE OF NEW YORK
Present:

HON. STEPHEN A. BUCARIA Justice

TRAL/lAS , PART 2
NASSAU COUNTY

BOAR OF EDUCATION OF THE
ARINGDALE UNION FREE SCHOOL
DISTRICT

INEX No.

3369/06

MOTION DATE: July 8 ,
Plaintiffs
-againstMotion Sequence # 004 ,

2010

007

JOHN A. GRILLO , ARCHITECT , P. , JOHN A. GRILLO , Individually, CHRISTOPHER HUNT, GREYHA WK NORTH AMERICA, LLC , ST ALCO CONSTRUCTION CORP., ALAN NAHMIAS , ACL CONSTRUCTION CORP. , CARO LUCARELLI , ANIANO MASONRY , INC. and MASONRY CONTRACTORS , INC.

Defendants.

G. MASONRY CONTRACTORS , INC.
Third- Part Plaintiff

-against-

CARVALHO CONCRETE CORP. and TRIPLE M ROOFING CORP.
Third- Part
Defendants.

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BOARD OF EDUCATION OF THE FARMINGDALE UFSD
CARVALHO CONCRETE CORP.
Fourth- Part Plaintiff

Index no.

3369/06

-against-

WHITESTONE CONSTRUCTION CORP. ISLAND BAY WINOW AND CURTAIN WALL and W AUSAU WINDOW AND WALL SYSTEMS
Fourth- Part
Defendants.

The following papers read on this motion:

Notice of Motion....................................... X Cross- Motion............................................. X Affirmation in Opposition......................... Reply Affidavit/Affirmation ..................... XX Memorandum of Law................................ XX Memorandum of Law in Reply.................. X

Motion by fourth-part

defendant Apogee-

Wausau Group, Inc. i/s/ha Wausau

Window and Wall Systems (Wausau) for an order pursuant to CPLR 321 (a)(7) dismissing the fourth- part complaint of Carvalho Concrete Corp. (Carvalho) and all cross- claims ranted asserted by fourth- part defendant Whitestone Construction Corp. (Whitestone)
is in par and

denied in part.
for

an order pursuant to CPLR ranted denied part. Whitestone s motion for an order staying all disclosure pursuant to Commercial denied Division Rule ll(d) and
Cross-motion by fourth- part defendant Whitestone 321 I (a)(7) dismissing Carvalho s fourth- part complaint
CPLR 3124(b) is is in part and

BACKGROUN
In February 2001 , the Board of Education (Board of Ed) entered into a contract with defendant ACL Construction Corp. (ACL) to act as the general contractor supervising the

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BOARD OF EDUCATION OF THE FARMINGDALE UFSD

Index no. 3369/06

installation and waterproofing of interior and exterior walls for the 4 classroom additions to a public school building located at 95 Woodward Parkway, Farmingdale , New York (Woodward School Project). The Board of Ed entered into a contract for a 6 classroom addition for the same school with defendant Stalco Constrction Corp.

ACL entered into a contract

with defendant/third-

part plaintiff C. G. Masonr

Contractors , Inc. (C. ), to perform concrete and masonr work on the 4 classroom addition at the school. C. G. then retained third-part defendant Carvalho to perform concrete and masonr work. Thereafter , fourth- part defendant Whitestone was contracted to install windows with respect to the four classroom addition. The windows were manufactured by fourth-par defendant Wausau.

Defendant Grilo was the School District Architect. Defendant Greyhawk was the
construction manager. Defendant Hunt was the project manager from the architectural firm.

In 2006 , the Board of Ed commenced an action against various entities which it retained to construct and design the additions to the Woodward School Project. In the main action , plaintiff alleges that Grilo , Hunt , Greyhawk, Stalco , and ACL were negligent in the design and construction of the new additions , resulting in moisture and water leaks from February 2001 and continuing to date. Plaintiff further claims that the damages are so extensive that sections of the school building need to be tom down and reconstructed at a cost of no less than $6 000 000. 00.

Masonry Contractors , Inc. (C. ) brought a third-part action against Carvalho and Triple M. Roofing Corp. Carvalho then commenced a fourth-part complaint against Whitestone , Island Bay Window and Curtain Wall and Wausau. Island Bay Window and Curtain Wall (Island Bay) were contracted to remove and uninstall the windows. In the fourth-part complaint , Carvalho seeks contribution and common law indemnification from the fourth- part defendants. In its answer , fourth- part defendant Whitestone asserts a cross- claim against Wausau for contribution and indemnity.
Subsequently, C. G.

Wausau and Whitestone move for dismissal of the fourthpart complaint on the ground that Carvalho cannot seek contribution or common- law indemnification as Carvalho s potential liability stems from its contractual relationship to
Fourth-part
defendants
other parties in this action

, and is not tort based.

Wausau also seeks dismissal of

Whitestone s cross- claims.

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BOARD OF EDUCATION OF THE FARMINGDALE UFSD

Index no. 3369/06

In opposition to Wausau s motion and Whitestone s cross-motion , Carvalho asserts that plaintiff does allege claims sounding in negligence and questions of fact exist as to whether the subject windows were defectively manufactured and/or installed. Alternatively, Carvalho asserts that in the event that plaintiff s claims stem from contractual obligations an exception exists as Wausau and Whitestone " launched a force of instrument of harm (Espinal v Melville Snow Contrs. 98 NY2d 136, 141- 142 (2002)).

On a motion to dismiss for failure to state a cause of action pursuant to CPLR
3211(a)(7), the pleading is to be liberally construed, accepting all the facts alleged in the (See pleading to be true and according plaintiff the benefit of every possible Sokoloff v Harriman Estates Nonnon v City of New York 9 NY3d Martinez 84 NY2d 83 87 (1994)). The Development Corp. court' s role on amotion to dismiss pursuant to CPLR 3211(a)(7) is to determine whether the factual allegations fit within any cognizable theory, without regard as to whether the Colasacco v Robert E. Lawrence Real Estate Union State Bank v Weiss 65 AD3d 584 (2nd Dept. 2009); 68 AD3d 706 (2nd Sokol v Leader 64 AD3d 1180 (2nd Dept. 2010)).
inference 825 (2007); 96 NY2d 409 (2001); Leon allegations ultimately can be established (see Dept. 2009);

While affidavits may be considered , if the motion has not heen converted to a CPLR 3212 motion for summary judgment , they are generally intended to remedy pleading defects - and not to offer evidentiary support for properly pleaded claims. York supra: lJovello v Oro fino Realtv Co. Inc. 40 NY2d 633 635- 635 (1976)).
Nonnon v City of New see

INDEMNIFICATION
Implied or common law indemnification arises from principles of equity (McDermott v New York, 50 NY2d 211 216 (1980)). As a matter of simple fairness , a person who, in whole or in part, has discharged a duty which is owed by him but which as between himself and another should have been discharged by the other, is entitled to indemnity (Id). A right to common law indemnification may arise by virtue of the breach of a duty existing because of contractual relations between the paries (23 NY Jur2d ~ 87).
The principle of' common law or implied indemnification permits one who has been compelled to pay for the wrong of another to recover form the wrongdoer the damages it paid TiUanv at Baron v Grant 48 AD3d 608 (2nd Dept. to the injured Westburv Condominium bv its Bd. of Managers v Marelli Development Corp. 40 AD3d 1073 , 1077 (2nd Dept. 2007)). Further the part seeking indemnification ' must have
part' " 2008), quoting

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. ..

,"

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BOARD OF EDUCATION OF THE FARMINGDALE UFSD

Index no. 3369/06

delegated exclusive responsibility for the duties giving rise to the loss to the part from whom indemnification is sought' and must not have committed actual wrongdoing itself' Baron v Grant. supra: TiUanv at Westburv Condominium bv its Bd. of Managers v Marell Development Corp supra at 1077.

On this motion to dismiss , the court must assume that Whitestone , the window installer, and Wausau , the window manufacturer, were responsible for the window leaks. Thus , if Carvalho , the masonry contractor , is found liable for the building damage , it may be discharging a duty which should have been discharged by Whitestone or Wassau. Fourthpart defendants Whitestone and Wausau s motion to dismiss the fourth-part claim for denied . Wausau s motion to dismiss Whitestone s cross- claim for
common law indemnity is indemnity is similarly

denied
CONTRIBUTION

There is no common law right to contribution in contract actions

of Hudson City Schooll)ist. v Sargent. Webster. Crenshaw and

(Board of Educ. , 71 NY2d 21 , 26

(1987)). Since the parties to a contract have the power to delineate the scope of their liabilty, there is nothing unfair in defining a contracting part' s liability by the terms of the agreement (23 NY Jur2d ~ 10). CPLR 1401 authorizes contribution in actions where two or more persons are subject to liabilty for damages for the same personal injury, injury to propert or wrongful death. " However purely economic loss resulting from a breach of contract does not constitute ' injury to Children Corner Learninf Center vA. Miranda Contracting Corp. 64 AD3d 318 (1 st Dept. Heating Co.. Inc. v Washington Group Intern. Inc. , 59 st Dept. 2009). Further AD3d 311 (I the touchstone for purposes of whether one can seek contribution is not the nature of the claim in the underlying complaint but the measure of damages sought therein Children s Corner Learning Center vA. Miranda. supra ; see Inc. v New York State Hous. Fin. Agencv. 307 AD2d 891 897 (I st Dept. I NY3d 504 (2003)).
propert' " (See 2009); Richards Plumbing Trump Village Section 2003), 3. lv denied

Inasmuch as the underlying claims seek purely economic damages , the
to dismiss Whitestone s crosscontribution claims are precluded. Fourth-part defendants Whitestone and Wausau motion to dismiss the fourth- part claim for contribution is ~ranted . Wausau s motion
claim for contribution is similarly

eranted
s cross-motion which seeks to

The branch of Fourth- part

defendant Whitestone

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BOARD OF EDUCATION OF THE FARMINGDALE UFSD
stay disclosure is

Index no. 3369/06

denied . Counsel are requested to take note of the third and fourth part designations in the caption and refer to the paries by those designations in all furter papers fied in the action.
This constitutes the order and judgment of this Court.

Dated AUG 16 2010

lL C-

ENTERED
2010 NASSAU COUNTY COUNTY CLERK' S OFFICE
1 8 AUG



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