1776 Second Avenue Associates v. Beyer, Blinder & Belle

Order, Supreme Court, New York County (Diane Lebedeff, J.), entered October 23, 1990, which, inter alia, denied defendant Beyer, Blinder & Belle’s cross-motion pursuant to CPLR 3025 for permission to amend its answer to assert cross-claims for contribution and indemnification, unanimously modified, on the law, insofar as to permit such cross-claims to be asserted against the named co-defendants, other than Testwell, Craig, Berger, Inc., and otherwise affirmed, without costs.

This is an action by plaintiff building owner for breach of contract and negligence in the construction and design of its building’s curtain wall, resulting in alleged water leakage problems. Defendant Testwell, which settled with plaintiff, is a design professional. Defendant Dunbarton supplied window units and related parts. Defendant Rosner was Dunbarton’s sales agent. Defendant Beyer, the appellant herein, performed architectural and engineering services. It is conceded by crossmovant Beyer that defendant Testwell is not liable for contribution because of the settlement and release executed between Testwell and the plaintiff. (General Obligations Law § 15-108.)

Defendant Beyer has not alleged facts sufficient to permit an amendment to its answer to include a cross-claim for indemnification as against defendant Testwell (Daniels v Empire-Orr, Inc., 151 AD2d 370). Indeed, there is no indication in the pleadings of any of the parties that Beyer might be contractually or vicariously liable for the wrongs of Testwell (Mas v Two Bridges Assocs., 75 NY2d 680). Finally, insofar as the remaining defendants have not settled with the plaintiff, and have not opposed co-defendant Beyer’s cross-motion to assert cross-claims for indemnification and contribution, Beyer, in light of the facts pleaded, should be permitted to amend its answer to include cross-claims as against the remaining defendants, other than defendant Testwell. Concur— Ellerin, J. P., Wallach, Kupferman, Asch and Kassal, JJ.