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Requirements for Common Law Indemnification and Contribution Causes of Action Explained

The Second Department, in the context of a legal malpractice action, explained the requirements for common law indemnification and contribution.  The motions to dismiss at issue were brought by the third-party defendant law firm (M & S) against the third-party plaintiff law firm (Danna).  The Second Department determined Danna's common law indemnification cause of action should have been dismissed because Danna's alleged liability was not purely vicarious and Danna's contribution action properly survived dismissal because Danna alleged M & S's legal malpractice contributed to plaintiff's damages:

“The principle of common law, or implied, indemnification permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party” … . “Common-law indemnification is warranted where a defendant's role in causing the plaintiff's injury is solely passive, and thus its liability is purely vicarious” … . “Thus, a party which has actually participated in the wrongdoing is not entitled to indemnification” … . Here, the plaintiffs' claims against the Danna defendants in the instant legal malpractice action are based upon the Danna defendants' representation of the plaintiffs in an accounting proceeding they commenced in the Superior Court of New Jersey (hereinafter the New Jersey proceeding). * * * …[T]he documentary evidence submitted by M & S in support of its motion conclusively established that any liability on the part of the Danna defendants for legal malpractice was not solely passive and purely vicarious. Accordingly, the Supreme Court should have granted that branch of M & S's motion which was pursuant to CPLR 3211(a)(1) to dismiss the cause of action for common-law indemnification in the third-party complaint insofar as asserted against it.

As to the contribution cause of action, ” [i]n determining whether a valid third-party claim for contribution exists, the critical issue is whether the third-party defendant owed a duty to the plaintiff which was breached and which contributed to or aggravated plaintiff's damages'” … . ” [T]he remedy may be invoked against concurrent, successive, independent, alternative and even intentional tortfeasors'” … . “A defendant attorney may seek contribution from a subsequently retained attorney, to the extent that the subsequently retained attorney's negligence may have contributed to or aggravated the plaintiff's injuries” … . Contrary to M & S's contentions, the Supreme Court properly denied those branches of its motion which were pursuant to CPLR 3211(a) to dismiss the contribution cause of action in the third-party complaint insofar as asserted against it, since the defendants third-party plaintiffs properly stated a cause of action alleging that M & S's legal malpractice contributed to the plaintiff's damages, and documentary evidence did not conclusively establish a complete defense to that cause of action… . Bivona v Damma & Assoc PC, 2014 NY Slip Op 08947, 2nd Dept 12-24-14

 

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