DECISION ORDER ON MOTION Motion by third third-party and fourth third-party defendant WSP USA Buildings, Inc. (hereinafter WSP) pursuant to CPLR 321 l(a)(l) and (7) for an order dismissing the third third-party and fourth-third party actions asserted by AFK Engineers LLP (hereinafter AFK) and T.M. Bier & Associates Inc. (hereinafter TMBA) or, alternatively, pursuant to CPLR 1001 for an order severing the third third-party and fourth third-party actions denied. DISCUSSION As a preliminary matter, the court has already decided the issue of severance based on the papers in motion seq. nos. 004 and 005. The branch of this motion that is to sever is denied for the reasons stated in the decision and order on motion seq. no. 005. Further, the only argument as to that portion of the application is that the note of issue had been filed. As the court previously vacated the note of issue, that argument no longer forms a basis for that application. On a motion to dismiss pursuant to CPLR 321 l(a)(7), the court is to accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within a cognizable legal theory (see Leon v. Martinez, 84 NY2d 83, 87-88 [1994]). CPLR 321 l(a)(l) states, in pertinent part, that a party may move for judgment dismissing one or more causes of action asserted against them on the ground that a defense is founded on documentary evidence. CPLR 321 l(a)(7) states, in pertinent part, that a party may move for judgment dismissing one or more causes of action asserted against them on the ground that the pleading fails to state a cause of action. The pertinent question for the court is whether the proponent of the pleading has a cause of action, not whether they have stated one (see id. at 88). As is relevant here, AFK asserts a common-law contribution cause of action against WSP in the third third,-party complaint and TMBA asserts common-law contribution and indemnification causes of action against WSP in the fourth third-party complaint. I. Contribution Causes of Action Asserted by AFK and TMBA “Claims for contribution are governed by CPLR 1401 and apply to damages for personal injury, injury to property[,] or wrongful death” (Structure Tone, Inc. v. Universal Svcs. Group, Ltd., 87 AD3d 909,911 [1st Dept 2011]). “Where it is alleged that a legal duty independent of the contract has been violated, a basis for contribution can exist (see Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70NY2d 382,389 [1987]), provided that that the nature of the liability at issue was not contemplated by contracting parties in their agreement, including placement of the risk and attendant insurance-procurement obligations (see generally Dormitory Auth. of the State of N.Y. v. Samson Constr. Co., 30 NY3d 704, 711 [2018]). Unlike in Dormitory Authority. however, there has been no discovery in this case.” (63rd & 3rd NYC LLC v. Advanced Contr. Solutions., LLC,.-NYS3d-, 2024 NY Slip Op 00120, *1 [1st Dept, Jan. 11, 2024].) The court finds that plaintiffs have asserted tort causes of action in their amended complaint against AFK as a direct defendant to which CPLR 1401 applies. CPLR 1401 “is applicable in cases where a tort-feasor is charged with ‘breach of warranty’ in connection with a defective product that causes injury, [as] in such cases the breach of warranty is as much a tortious wrong as it is a breach of contract” (Bd. of Educ. of Hudson City School Dist. v. Sargent, Webster, Crenshaw & Folley, 71 NY2d 21, 28 n 2 [1987]). Here, plaintiffs assert negligence and breach of warranty causes of action against AFK. Plaintiffs allege in the amended complaint that a slosh tank malfunctioned, releasing thousands of gallons of water and causing significant property damage to plaintiffs’ insureds. Plaintiffs do not allege that AFK was subject to or breached any contract. As such, the court finds that CPLR 1401 is applicable to the damages sought by plaintiffs and that AFK has alleged facts that fit within a cognizable legal theory of contribution. The court finds further that WSP has failed to establish that CPLR 1401 is inapplicable as concerns the fourth third-party complaint and that TMBA’s contribution cause of action should consequently be dismissed. This is a pre-answer motion to dismiss, and third-party plaintiffs have asserted negligence, breach of contract, contribution, and common-law and contractual indemnification causes of action in the third-party complaint. A contracting party may be held liable for a tort arising from the breach of a duty distinct from, or in addition to, the breach of a contract (see Sommer v. Fed. Signal Corp., 79 NY2d 540,551 [1992]). Here, WSP failed to annex the subject contract which prevents the court from performing any analysis of the relationship between the parties as directed by the holding in 63rd & 3rd NYC LLC. Even if WSP had annexed the subject contract, as this is a pre-answer motion to dismiss pursuant to CPLR 321 l(a)(7), whether the negligence and breach of contract causes of action prove duplicative for the purposes of a CPLR · 1401 analysis “cannot be resolved as a matter of law based on [] minimal pre-answer allegations alone” (63rd & 3rd NYC LLC at *I). It would have been for WSP to have annexed the relevant contract and this has not been done. Further while discovery has progressed among the parties, including third-party plaintiffs, TMBA, and WSP, before and since the filing of this motion, and while this court is actively conferencing this case and the other six related cases which are consolidated for the purposes of joint discovery, the relevant fruits, if any, of that discovery process are not before the court on this motion. As such, the issue of whether the negligence and breach of contract causes of action are duplicative, for the purposes of evaluating the merits of TMBA’s contribution cause of action, is prematurely raised. II. Common-Law Indemnification Cause of Action Asserted by TMBA, Only “[W]here, as here, [a] party [is] sued solely for its own alleged wrongdoing, rather than on a theory of vicarious liability, [it] cannot assert a claim for common law indemnification (Mathis v. Central Park Conservancy. 251 AD2d 171, 172 [1st Dept 1998];-see also TOV Mfg .. Inc. v. Jaco Import Com., 123 AD3d 477,478 [1st Dept 2014]; Beck v. Studio Kenji. Ltd., 90 AD3d 462,463 [1st Dept 2011])” (63rd & 3rd NYC LLC at *2). Here, the third-party plaintiffs have asserted negligence, breach of contract, contribution, and common-law and contractual indemnification causes of action in the third-party complaint. As to the negligence cause of action, the third-party complaint states that “[i]f the defendants/third-party plaintiffs are held liable to the plaintiffs in any respect, such liability will be due solely to the active or primary negligence of [TMBA]. and each of its agents, servants, and/or employees” (NYSCEF doc no. 134,r 19 [emphasis added]). Concordantly, the fourth third-party complaint asserts, as to its common-law indemnification cause of action, that “[TMBA]‘s liability would be merely vicarious, derivative, and secondary to the active negligence of all adverse parties, inclusive of Defendants and Fourth Third-Party Defendants, their agents, servants, employees, contractors, and/or subcontractors” (NYSCEF doc no. 147 if 16 [ emphasis added]). The court finds that the third-party complaint sets forth a theory of vicarious liability~ and as TMBA might potentially be vicariously liable to third-party plaintiffs, TMBA has a cause of action for common-law indemnification as against WSP (see Bd. of Mgrs. of Olive Park Condominium v. Maspeth Props .• LLC, 170 AD3d 645,647 [2d Dept 2019] [opining that "[c]ommon-law indemnification is warranted where a defendant’s role in causing the plaintiffs injury is solely passive, and thus its liability is purely vicarious]). As to the branch of the motion pursuant to CPLR 321 l(a)(l), there is no documentary evidence annexed to .the moving papers nor is there any argumentation in any of the supporting papers for relief pursuant to that section. As such, WSP has failed to demonstrate entitlement to dismissal under CPLR 321l(a)(l). THIS SPACE IS INTENTIONALLY LEFT BLANK CONCLUSION Accordingly, it is ORDERED that the motion is denied in its entirety; and it is further ORDERED that, within five days of entry, both AFK and TMBA shall each serve a copy of this order with notice of entry on WSP. The foregoing constitutes the decision and order of the court. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED X DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: February 7, 2024
