Majority
p. 1196Community Steel Corporation, Plaintiff and Third-Party Plaintiff-Respondent, v Terra Marine Dredging Corporation et al., Defendants. Prince Rubber & Plastics, Inc., Third-Party Defendant-Appellant.
— Order unanimously affirmed with costs. Memorandum: Community Steel Corporation (Community) purchased 1,200 feet of sponge joint material from Prince Rubber & Plastics, Inc. (Prince) and, in turn, sold the joint material to Terra Marine Dredging Corporation (Terra) for Terra’s use in a public improvement project in the Town of Amherst. In the main action, Terra asserted a counterclaim against Community for Community’s failure, inter alia, "to supply the proper joint material”. Community then instituted the third-party action for indemnification against Prince. Supreme Court properly denied Prince’s motion to dismiss the third-party complaint.
p. 1197
Community has pleaded a valid claim for implied indemnification. It seeks full reimbursement for Prince’s breach of an implied warranty of fitness for a particular purpose (see, Uniform Commercial Code § 2-315; McDermott v City of New York, 50 NY2d 211 , 218-219). With respect to that breach, Community is free from affirmative fault and seeks to shift the obligation where in equity it belongs (see, Garrett v Holiday Inns, 86 AD2d 469 , 470, mod on other grounds 58 NY2d 253 ). Since it is well settled that "[indemnification claims generally do not accrue for the purpose of the Statute of Limitations until the party seeking indemnification has made payment to the injured person” (McDermott v City of New York, supra, at 216 ), the third-party action is timely. (Appeal from Order of Supreme Court, Erie County, Francis, J. — Dismiss Complaint.) Present — Callahan, A. P. J., Doerr, Boomer, Green and Davis, JJ.
Cases cited
- McDermott v. City of New York 50 NY2d 211 at 218-219 p. 1197
- Garrett v. Holiday Inns, Inc. 86 AD2d 469 at 470 p. 1197
- Garrett v. Holiday Inns, Inc. 58 NY2d 253 p. 1197