Post v. A. H. Robins Co.

—Order, Supreme Court, Bronx County, entered February 28, 1979, dismissing the third-party complaint, modified, on the law and in the exercise of discretion, without costs, to the extent of denying the motion to dismiss the second and fourth causes of action in the third-party complaint, without prejudice to renewal in a motion which also addresses the corresponding causes of action in the complaint. This is an action to recover damages for injuries allegedly sustained by plaintiff in connection with her being fitted with a Daikon coil or shield and accompanying medical care. As against the defendant Eastern Women’s Center (Eastern) alone, the complaint alleges negligence and malpractice. As against Eastern and A. H. Robins Co., Inc. (Robins), the complaint sets forth claims based on breach of warranty, statutory violations and strict products liability. Eastern cross-claimed against Robins seeking an apportionment of relative responsibility pursuant to CPLR 3019. Thereafter, plaintiff settled its case against Robins for the sum of $12,500 and executed a general release. Eastern then commenced a third-party action against Robins that was clearly intended in four causes of action to set forth claims for indemnification, although the prayers for relief erroneously referred to an apportionment of damages. Robins moved to strike the third-party complaint alleging with regard to one of the causes of action that it did not state a good cause of action, and as to the remaining three that the action was barred as a result of the settlement under CPLR 1401 and section 15-108 of the General Obligations Law. Special Term granted the motion to dismiss the complaint. We agree that the first cause of action seeking indemnification on the theory of active and passive negligence does not state a legal basis for indemnification (Dole v Dow Chem. Co., 30 NY2d 143), nor does the third cause of action which refers in general terms to statutory violations. A different issue is presented with regard to the fourth cause of action seeking indemnification in the event liability is imposed on Eastern for strict products liability and the second cause of action which, although awkwardly phrased, apparently undertakes to seek indemnification if liability is imposed for breach of warranty. Although the law as to indemnification with regard to these causes of action is unsettled, we cannot exclude at this early point in the litigation the possibility that if the plaintiffs causes of action for breach of warranty and strict products liability are upheld, that Eastern might have the right to seek indemnification against Robins. The essential substantive question thus is whether the complaint sets forth legally sufficient causes of action for breach of warranty and strict products liability. We have concluded that the validity of those causes of action in the complaint should not be determined on a motion addressed only to the third-party complaint, and in which the plaintiff does not participate. The legal effect of the order appealed from is to leave open as a theoretical possibility that plaintiff may recover from defendant on causes of action that, except for the order, might have permitted indemnification. (Cf. Zuckerman v City of New York, 66 AD2d 248.) The practical effect of the order, of course, would be the dismissal of the corresponding causes of action in the complaint on a later motion based upon a decision on a motion in which plaintiff had not participated. Neither consequence seems to us satisfactory. Moreover, it is apparent that Eastern is not ideally suited to argue for the legal sufficiency of causes of action directed against it. The determination of that issue, accordingly, should await a motion addressed as well to the pertinent causes of action in the complaint. (See CPLR 1008.) Concur—Sandler, Bloom, Lane and Silverman, JJ.