Taft v. Shaffer Trucking, Inc. , 383 N.Y.S.2d 744 ( 1976 )

Simons, J. (dissenting).

It is clear that New York law now permits an apportionment of damages among culpable parties "regardless of the degree or nature of the concurring fault” (Kelly v Long Is. Light. Co., 31 NY2d 25, 29; CPLR 1401 and cf CPLR 1411) and that the Legislature intended to permit contribution even in favor of an intentional wrongdoer, if the parties are subject to liability to plaintiff for damages for the same injury (see Twelfth Annual Report of NY Judicial Conference on CPLR [Twentieth Annual Report], pp 212-215; 2A Weinstein-Korn-Miller, NY Civ Prac, par 1401.12). Nevertheless, I would affirm Special Term because there is no way in which defendant Crawford & Co. may fail in its defense against plaintiffs’ claim and also be entitled to recover from third-party defendant, Gorman.

If plaintiffs are to succeed, they must prove (among other things) that they (i.e., their attorney, see Arbour Heights v Norman, 39 AD2d 836) justifiably relied upon the misrepresentations of defendant Crawford & Co. (Prosser, Torts [4th ed], pp 685-686, 715-718) and that the fraud of defendant was the "proximate”, "real, direct and immediate cause” of plaintiffs’ injuries (Deyo v Hudson, 225 NY 602, 615).

A judgment based upon plaintiffs’ justifiable reliance on an intentional misrepresentation of defendant’s agents would necessarily foreclose any claim over against the third-party defendant attorney based upon her malpractice, for the attorney may not be guilty of negligence if she justifiably relied upon defendant’s misrepresentations. The circumstances which must be proved before plaintiffs may recover against defendants and the circumstances which must be proved before third-party plaintiffs may recover against the third-party defendant áre contradictory and mutually exclusive. A jury could not find defendants and third-party defendant both guilty of "culpable conduct”.

The conduct of plaintiffs’ attorney is a matter of defense to their cause of action. Defendant’s third-party complaint is legally insufficient because it contains allegations which, if established, would preclude liability against it (Coffey v Flower City Carting & Excavating Co., 2 AD2d 191, affd 2 NY2d 898; Scivetti v Niagara Mohawk Power Corp., 33 AD2d 884; and cf Lutz Feed Co. v Audet & Co., 72 Misc 2d 28).

Cardamone, Mahoney and Dillon, JJ., concur with Moule, J. P.; Simons, J., dissents and votes to affirm the order in an opinion.

Order reversed with costs and motion denied.