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.
…
bruteforcelawyer.com 