Category: [App Div 2d Dept]

CPLR § 1401 Claim for contribution

CPLR § 1402 Amount of contribution

O'Gara v Alacci, 2009 NY Slip Op 06668 (App. Div., 2nd, 2009)

The rules governing contribution, as set forth in Dole v Dow Chem. Co. (30
NY2d 143, 147-153) and codified in CPLR article 14, enable a joint
tortfeasor who has paid more than his or her equitable share of damages
to a plaintiff to recover the excess from the other tortfeasor (see CPLR 1401, 1402; Sommer v Federal Signal Corp., 79
NY2d 540, 555-556). Ordinarily, the other tortfeasor's liability for
contribution flows from a breach of a duty owed to the plaintiff (see Sommer v Federal Signal Corp., 79 NY2d at 559; Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 71 NY2d 599, 603; Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 568 n 5; Garrett v Holiday Inns, 58
NY2d 253, 258). This rule is consistent with the language of CPLR 1401,
providing, in relevant part, that absent certain exceptions not
applicable here, "two or more persons who are subject to liability for
damages for the same personal injury . . . may claim contribution among
them."

***

However, the rule that a party's liability for contribution flows from
a breach of a duty owed to the plaintiff is a "general" one to which
there exists an "important exception" (Sutherland v Hallen Constr. Co., 183
AD2d 887, 889-890). Indeed, it has been recognized that a party's
liability for contribution can also flow from a breach of an
independent duty owed to the defendant, provided that the breach of
this duty played a part in causing or augmenting the injury for which
the defendant seeks contribution (see Raquet v Braun, 90 NY2d 177, 182-185; Sommer v Federal Signal Corp., 79 NY2d at 559; Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 71 NY2d at 602; Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d at 568 n 5; Garrett v Holiday Inns, 58 NY2d at 261; Nolechek v Gesuale, 46 NY2d 332, 337-341).

***

We hold, as other courts have, that where, as is allegedly the case
here, an intoxicated plaintiff is injured by a tortfeasor, and the
circumstances support a finding that an accident was caused, in part,
by the provision of alcohol to the plaintiff in violation of General
Obligations Law § 11-100 or § 11-101, the tortfeasor may properly seek
contribution from the provider of the alcohol based upon this violation
(see O'Neill v Ithaca Coll., 56 AD3d 869, 870; Tratt v Washington Build. Mgt. Co., 15 Misc 3d 1136[A]; Strassner v Saleem, 156 Misc 2d at 769-772; cf. Oursler v Brennan,
2009 NY Slip Op 6357 [4th Dept 2009]). We observe that permitting
contribution in such cases could result in the provider being held
answerable in damages to the alleged tortfeasor — as opposed to the
intoxicated person — by virtue of the provider's "wrongdoing" in
providing alcohol in violation of General Obligations Law § 11-100 or §
11-101 (Adamy v Ziriakus, 92 NY2d 396, 404). Certainly, this
promotes one of the important goals of the Dram Shop Act, namely,
motivating sellers of alcohol to exercise greater care in their sales (see Rutledge v Rockwells of Bedford, 200 AD2d 36, 38; Bartlett v Grande, 103 AD2d 671, 672; Matalavage v Sadler, 77 AD2d at 43).

The bold is mine.

…

CPLR § 1001 Necessary joinder of parties

Fagan v Nowitz, 2009 NY Slip Op 06660 (App. Div., 2nd, 2009)

By decision and order of this Court dated February 27, 2007, the matter
was remitted to the Supreme Court, Queens County, to hear and report on
whether or not it was appropriate to proceed in the absence of the
remainderpersons or beneficiaries, whether or not they can or should be
joined, and what is the appropriate remedy in the event that they
cannot be joined under CPLR 1001(b), and the appeal was held in
abeyance in the interim (see Nowitz v Nowitz, 37 AD3d 788).
The Supreme Court has now filed its report, and the parties have filed
supplemental appendices and briefs. Justices Mastro, Dillon, and Miller
have been substituted for former Justices Goldstein, Lifson, and Lunn (see 22 NYCRR 670.1[c]).

***

A court may excuse the failure to join a necessary party and allow
an action to proceed in the interest of justice upon consideration of
five factors enumerated in CPLR 1001(b): (1) whether the petitioner has
another remedy if the action is dismissed for nonjoinder, (2) the
prejudice that may accrue from nonjoinder to the defendant or to the
nonjoined party, (3) whether and by whom prejudice might have been
avoided or may in the future be avoided, (4) the feasibility of a
protective provision, and (5) whether an effective judgment may be
rendered in the absence of the nonjoined party.

Here, as the defendant concedes, the first factor weighs in
favor of excusing the plaintiff's failure to join the entities, since
she has no other effective remedy. However, the Supreme Court
improvidently exercised its discretion in determining that the
remaining four factors also weighed in favor of the proceeding
continuing in the entities' absence. As to the second factor, the
entities will suffer great prejudice if the matter proceeds in their
absence and the trust at issue is rescinded, as it was in the judgment
appealed from. As to the third factor, the plaintiff easily could have
avoided the prejudice to the entities by having timely joined the
entities as defendants. Moreover, although the entities could have
avoided any prejudice by voluntarily intervening in the action, such a
fact is outweighed by the plaintiff's failure to set forth any
reasonable excuse for her failure to timely join them (see Matter of Red Hook/Gowanus Chamber of Commerce v New York City Bd. of Stds. & Appeals, 49 AD3d 749, 752; Matter of Solid Waste Servs., Inc. v New York City Dept. of Envtl. Protection, 29 AD3d 318,
319). As to the fourth factor, the Supreme Court allowed the matter to
proceed to trial in the absence of the entities, resulting in the
rescission of the trust. Thus, this factor also weighs against
proceeding in the entities' absence, as under such circumstances, no
protective provision is feasible since recision of the trust directly
affects the entities' economic interests. Finally, the fifth factor
also weighs against proceeding in the entities' absence, as it is
questionable whether an effective judgment may be rendered without
their participation in the action.

Accordingly, considering each of the five factors enumerated in
CPLR 1001(b), and given our conclusion that the entities are
indispensable parties (see Nowitz v Nowitz, 37 AD3d 788), and in light of the fact that the applicable statute of limitations has expired (see CPLR 213[8]), the action must be dismissed (see Matter of Red Hook/Gowanus Chamber of Commerce v New York City Bd. of Stds. and Appeals, 49 AD3d 749, 752; Nixon v Barrow, 239 AD2d 326).

The bold is mine.